Equitable & Rights Bar
Cases
Collins v. Bus Atha Cliath/Dublin Bus
, Supreme Court, October 22, 1999
Judgment of Murphy J delivered the 22nd Day of October 1999 [Nem. Diss.]
1. This is an appeal from the Order of Mr Justice Flood made on the 21st day of October, I 996, whereby it was ordered that:-
“This action be dismissed for want of prosecution.”
2. The matter has its origins in an accident which happened or is alleged to have happened in the month of May 1985. The Defendants were notified of the potential claim in June 1985 but proceedings were not instituted until the plenary summons herein was issued on the 6th May 1988.
3. The delay, and that there was, in instituting the proceedings was not fatal to the Plaintiffs claim. On the other hand it was pointed out by Henchy J in Sheehan v. Amond [1982] IR
235 that where there is delay in instituting proceedings the subsequent steps should be taken with expedition. Henchy J summarised the position (at page 237) in the following terms:-
“As the plaintiff’s next friend, the plaintiff’s father got a solicitor to issue a plenary summons in the High Court against the defendant in February, 1969, which was just within the three year limitation period. No explanation has been given for that delay. It is a statutorily permitted delay but (as has been pointed out in some of the cases), when the period of limitation for instituting proceedings has been all but allowed to expire, a plaintiffs 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.”
4. That is an observation which has been cited and applied in numerous subsequent cases.
5. On the 27th March 1990 the Plaintiff served notice of intention to proceed within one month from the date thereof. That intention was not implemented. A further notice of intention to proceed dated the 28th March 1993 was served but again no steps were taken in pursuance thereof. A third notice of intention to proceed is dated the 4th March 1996 and subsequent to that a Statement of Claim was delivered on the 19th April 1996. The essence of the Plaintiffs claim is to be found in paragraph 4 of that pleading which is in the following terms:-
“On or about the 30th day of May 1985 the Plaintiff was a lawful passenger travelling on Number 70 bus in the Merchants Quay area in the vicinity of Blackhall
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Place, Dublin 7, when owing to the negligence and breach of duty of the Defendants their servants or agents and each of them and either of them the Plaintiff was violently thrown to the ground.”
6. The Defendants served a notice for particulars on the 3rd May, 1996, to which a reply was made on the 20th June 1996.
7. The notice of motion dated the 31st July 1996 and returned for hearing by Mr Justice Flood n the 21st October 1996 the Defendants sought:-
“An order dismissing the Plaintiff’s claim herein on the grounds that the Defendants are prejudiced in defending this claim by reason of an inexcusable delay on the part of the Plaintiff in prosecuting her claim herein.”
8. The motion to the High Court was grounded on the affidavit of Colm Costello solicitor on behalf of the Defendants.
9. Mr Costello set out the history of the matter and contended that the Plaintiff’s delay was inordinate and inexcusable. He claimed further that the Defendants were prejudiced by the delay for a variety of reasons. He asserted in his affidavit that in 1992 the Claims Department had closed its file on the case. He asserted that investigation of the Plaintiffs claim had ceased. He stated that his clients had instructed him that there would be a full defence to the action on the grounds that a cyclist had cycled across the path of the bus in
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question and in doing so broke the traffic lights. This had created an emergency. He specifically deposed that the driver of the bus in question, a Mr Stafford had died. It was expressly stated that Mr Stafford had died in 1988. Whether this death occurred before or matter the institution of the proceedings has not been made clear. However, Mr Costello went on to explain the difficulties which had been encountered in dealing with the claim after the Plaintiff had sought to reactivate it. One potential witness is apparently unable to assist the Defendants and it is claimed – and obviously must be the case – that any medical examination of the Plaintiff at this stage would be of little value in assessing the injuries sustained in the alleged accident.
10. Mr Justice Flood made the order sought but did not allow the costs of the motion or action and there is no cross-appeal before this Court in relation to such costs.
11. The matter was heard before Mr Justice Flood on the affidavit of Mr Costello and the exhibits contained therein. No affidavit was sworn by or on behalf of the Plaintiff. The circumstances bear a striking similarity to the facts in Sheehan .v. Amond , to which I have already referred, and in respect of which Henchy J commented (at page 239) as follows:-
“When the motion came before the High Court on the 2nd November, 1981, the facts which I have set out spoke for themselves. They called out for an explanation as to why the plaintiff’s action was treated with what seems to have been casualness to point of indifference, and for a reason why the defendant should be called on to make his defence long after any reasonable system of law would expect a defendant to be in a position to marshal his defence to a serious claim against him in respect of a long-past road accident. But once again the case is conspicuous for a
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resounding silence. Not one word of evidence was tendered in the High Court by, or on behalf of the plaintiffs solicitor to explain, justify or even make understandable the manner in which he had allowed the plaintiffs case to acquire the appearance of extinction, or to suggest why the defendant should be expected to cope with a claim which had become enmeshed in the cobwebs of history. Nevertheless, although the evidence of inactivity and of seeming negligence was all on one side (i.e., that of the plaintiffs solicitor), the High Court judge allowed the action to proceed provided notice of trial was served within one week.
Understandably, the defendant has appealed against that decision. In effect, his counsel submits that it would be contrary to the fundamentals of fair court procedures if after what would be at least 17 years after the accident in question, the defendant were to be expected to mount an effective defence against a claim which the plaintiff’s solicitor has inexplicably allowed so to fade into the dim uncertainties of the past as to be beyond the reach of fair litigation.”
12. The delay of eight years in delivering the Statement of Claim, particularly having regard to the tardiness in instituting the proceedings, must be designated as “inordinate “. No effort has been made to excuse that delay and Counsel for the Appellant candidly admitted that it could not be excused.
13. Counsel on behalf of the Appellant argued that the learned trial Judge was not entitled to dismiss the Plaintiffs claim for want of prosecution. He contended that in accordance with
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the Order 122 Rule 11 of the Rules of the Superior Courts an action cannot be dismissed for ant of prosecution where proceedings have been taken in the two years prior to the application. Counsel is correct in that submission. However, I am afraid that it relates more to the form of the order as drawn up than to the substance of the ruling made and the judgment given by the learned Judge of the High Court. The application before him was not an application to dismiss for want of prosecution. It was a similar but distinct application, in the terms already quoted, to dismiss for reasons of delay – delay which was both inordinate and inexcusable and prejudicial to the Defendants. This distinction has been recognised in many cases of which NIHE .v. Wimpey [1989] NI 395 is one example. In this jurisdiction the position of parties to litigation is protected by the Constitution. This Is expressly recognised in the principles enunciated by the Chief Justice in Primor Plc .v. Stokes Kennedy Crowley [1996] 2 IR 459 at 475 to which Counsel referred. The statement by the Chief Justice reaffirmed the proposition that the Courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so. In addition he pointed out that even where inordinate and inexcusable delay had been established that the Court was required to exercise a judgment as to whether on the facts the balance of justice was in favour of or against the proceeding. This involved consideration of the implied constitutional principle of basic fairness of procedures. In particular the Court was required to consider whether the delay and consequent prejudice in the special facts of the case were such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiffs action.
14. It was submitted by Counsel on behalf of the Appellant that the admitted delay did not significantly prejudice the defence of the proceedings. Secondly, it was contended that the decision of the Defendants, as explained in the affidavit of Mr Costello, to close their file
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on the case in 1992 was ill advised and should not have been taken except in the context of in application then made to strike out the Plaintiff’s claim for want of prosecution.
15. In relation to the prejudice alleged by the Respondent’s and disputed by the Appellant it is accepted that the death of the Respondents bus driver occurred before protracted delay had taken place. On the other hand, it must be conceded that if the action had proceeded with reasonable dispatch the Respondents might not have been deprived of his evidence. With regard to the difficulty of obtaining appropriate medical evidence Counsel on behalf of the Respondents properly informed the Court that an examination of the Plaintiff had been carried out by a doctor on behalf of the Respondents in 1987. It was indicated the doctor concerned had retired and that no examination had been made since 1987. Again, the Court was informed that a statement had been taken by the Respondents from their driver and an issue was debated before the Court as to whether the admission of that statement would enable the proceedings to continue without substantial injustice to either party. It seems to vie that in all of the circumstances of the case such an arrangement would not provide a solution to the difficulties which exist. If evidence was called by the Plaintiff contradicting the statement of the deceased driver, serious injustice might be caused and in any event the problem with regard to medical evidence would remain unresolved. Furthermore there is the difficulty that other witnesses which the Respondents might have called are not now available. In any event the recollection of any witness of events which occurred 14 years ago must be of questionable value.
16. The fact that the Respondents did not apply in 1992 to have the proceedings struck-out for Lint of prosecution may be a factor to be taken into account but in the context of the facts the present case it is one to which little weight could be attached. It does not seem to me
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that the inactivity of the Respondents in that regard or their actions in seeking particulars in ii lie of 1996 could amount to acquiescence in the delay on the part of the Appellant. So far from it, it seems to me that the Respondents reviewed fully and fairly their position as it appeared after the belated delivery of the Statement of Claim and concluded correctly that they would be gravely prejudiced in the presentation of their defence after the inordinate and inexcusable delay which had by then occurred. In my view the learned Judge of the High Court was correct in striking-out the Plaintiffs claim. I believe that the form in which lie order was expressed was incorrect. It did not reflect the judgment on the facts submitted to the Court or the form in which the application had been brought. I would dismiss the appeal but rectify the terms in which the order of the High Court has been expressed by ordering that the action be dismissed for inordinate and inexcusable delay on the part of the Plaintiff to the prejudice of the Defendant.
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Silverdale & Hewett’s Travel Agencies Ltd v. Italiatour Ltd t/a Off Shore World Cup ‘94
, High Court, November 7, 2000
Judgment of Mr Justice Finnegan delivered the 7th day of November 2000
1. The Plaintiff’s claim is for damages for breach of contract. It alleges that it entered into an agreement with the first named Defendant to act as agent for the first named Defendant in Ireland for the sale in Ireland of travel packages to the 1994 world cup in the USA. The agreement it is alleged was negotiated and concluded with the second and third named Defendants acting as agents for the first named Defendant. The central issue in the action is the authority of the second and third named Defendants to conclude the alleged agreement.
2. The proceedings in the action were as follows:-
19th June 1995
Plenary Summons against the first named Defendant issued.
8th August 1995
Statement of Claim against the first named Defendant delivered.
17th August 1995
Notice for Particulars by first named Defendant delivered
8th February 1996
Plaintiff replied to first named Defendant’s Notice for Particulars
13th February 1996
Notice for further and better Particulars by first named Defendant delivered.
21st February 1996
Plaintiff replied to first named Defendant’s Notice for further and better Particulars
24th February 1996
Defence of first named Defendant delivered
1st May 1996
Amended Defence of first named Defendant delivered
13th May 1996
Order joining second named and third named Defendants as defendants. Plaintiff allowed 3 weeks to issue amended Plenary Summons and deliver Statement of Claim.
7th June 1996
Amended Statement of Claim delivered to the first named Defendant.
2nd July 1996
Plaintiff’s Affidavit of Discovery sworn.
22nd October 1996
Amended Plenary Summons (not issued) and amended Statement of Claims delivered to the second named and third named Defendants.
30th October 1996
Plaintiff’s Motion for further and better Discovery against first named Defendant issued.
10th December 1996
First named Defendant’s Affidavit of further and better Discovery sworn.
16th January 1997
Plaintiff’s Motion for Discovery against first named Defendant struck out on consent.
25th May 1999
Notice of Intention to Proceed served by Plaintiff.
26th July 1999
Order extending the time for issue of the amended Plenary Summons and delivery of the amended Statement of Claim.
3rd August 1999
Amended Plenary Summons and amended Statement of Claim served on and delivered to the second named and third named Defendants.
November 1999
Solicitors for the second named and third named Defendants come off record.
26th January 2000
Notice of Intention to Proceed served by Plaintiff.
3. There was no correspondence between the Solicitors to the Plaintiff and the Solicitors to the first named Defendant in the period from June 1997 to the 25th May 1999.
4. It is clear from the foregoing that there has been delay on the part of the Plaintiff. Following the Order dated 13th May 1996 joining the second named and third named Defendants as defendants the amended Plenary Summons was not issued. However a form of amended Plenary Summons and Statement of Claim was served on the second named and third named Defendants on the 22nd October 1996. The failure to issue an amended Plenary Summons came to light when the Solicitors for the second named and third named Defendants attempted to enter an appearance on the 11th February 1997. While the necessary papers for an application for an extension to the time limited by the Order of 13th May 1996 were drafted the matter was thereafter overlooked and it was only on the 26th July 1999 that an Order was made extending the time for the issue of the amended Plenary Summons and the delivery of the amended Statement of Claim. The amended Plenary Summons was thereafter duly served on the second named and third named Defendants on the 3rd August 1999 and the amended Statement of Claim was delivered on the same date. There was accordingly a period of delay extending form early June 1996 to late July 1999 a period of more than 3 years. However during that period matters progressed between the Plaintiff and the first named Defendant to the point where the motion for further and better discovery against the first named Defendant was struck out on consent on the 16th January 1997. Correspondence ensued in relation to discovery but this ceased in June 1997. Accordingly a period of complete inactivity ran from June 1997 to July 1999 a period of two years.
5. On the 20th March 2000 the first named Defendant issued a motion seeking the following reliefs:-
An Order pursuant to the inherent jurisdiction of the Court dismissing the proceedings as against the first named Defendant on grounds that the Plaintiff has been guilty of inordinate and inexcusable delay in prosecuting the proceedings.
In the alternative an Order under Order 122 Rule 11 of the Rules of the Superior Courts there having been no proceeding for 1 year from the last proceeding had in the action.
In the alternative an Order pursuant to Order 36 Rule 12 (b) of the Rules of the Superior Courts dismissing the Plaintiff’s action as against the first named Defendant for want of prosecution the Plaintiff having failed within 6 weeks of the close of pleadings to give notice of trial.
6. The broad principles applicable to an application of this nature were set out by Finlay P in Rainsford -v- Limerick Corporation (1995) 2 ILRM 561 at 567 as follows:-
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.
Where a delay has not been both inordinate and inexcusable it would appear that there are no real grounds for dismissing the proceedings.
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.
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.”
7. I find that the delay of the Plaintiff in this matter is both inordinate and inexcusable. Insofar as the Plaintiff’s personal blameworthiness is concerned the Solicitor to the Plaintiff has sworn an Affidavit in which he frankly accepts responsibility for the delay. There is nothing in any of the Affidavits filed on this application to suggest that there exists any personal blameworthiness on the part of the Plaintiff beyond that of it’s Solicitor for which it is vicariously liable. This is a factor which I must take into account in determining how I should exercise my discretion to dismiss the Plaintiff’s claim.
8. In considering a parties personal blameworthiness one must look at the circumstances of the party. In the case of an infant Plaintiff this circumstance will most likely justify delay during his minority: O’ Domhnaill -v- Merrick 1984 I.R. 151. In Guerin -v- Guerin 1992 2.I.R.287 Costello P. had regard to the circumstances that while the Plaintiff was an infant his family lived in one of the poorest sections of the community, the permanently unemployed, and were unaware that he the Plaintiff had a cause of action. Such considerations have little application to the Plaintiff in the present case which is a considerable commercial enterprise and must be expected to pursue litigation of a commercial nature with reasonable expedition and to that end take steps to ensure that it’s legal advisors act in an appropriately expeditious manner. Lack of personal blameworthiness in litigation such as this is of less significance than in cases such as O’Domhnaill -v- Merrick and Guerin -v- Guerin .
9. I must now proceed to determine on the facts whether the balance of justice is in favour of or against the proceeding of the case. In all the circumstances of this case there must be a balancing of the prejudice to the Plaintiff in having his claim against the first named Defendant dismissed and any prejudice to the first named Defendant in the matter proceeding resulting from the Plaintiff’s delay.
10. It appears from the Affidavits filed before me that the third named Defendant went into liquidation on the 1st July 1998 with an estimated deficiency of some £545,000 sterling. The third named Defendant was incorporated on the 26th March 1991 and commenced trading on the 1st January 1992. The following is a summary of its financial results:-
11. Period to 31st March 1992 net loss £ 4,848.00 sterling
12 Months to 31st March 1993 net profit £ 3,711.00 sterling
17 Months to 31st August 1995 net profit £10,623.00 sterling
12 Months to 31st August 1996 net loss £61,692.00 sterling
12 Months to 31st August 1997 net loss £ 885.00 sterling
12. As at the last mentioned date the Company had accumulated losses of £53,091 sterling.
13. Notwithstanding the third named Defendant’s poor trading performance it seems likely on the papers exhibited in the Affidavits before me that it could well have continued to trade had it not run into difficulties in organising tours for the 1998 world cup which difficulties were the immediate cause of its collapse. The first named Defendant claims that it has been prejudiced by the delay on the part of the Plaintiff in prosecuting these proceedings in that had the claim been prosecuted diligently a hearing would have been obtained in advance of the liquidation of the third named Defendant. Further following the liquidation of the third named Defendant the second named Defendant took no interest in the proceedings and the Solicitors retained by him and the third named Defendant have come off record and there is now no Solicitor on record. The delay they allege has denied them the opportunity of obtaining contribution or indemnity from the third named Defendant and seriously diminished the possibility of their obtaining contribution or indemnity from the second named Defendant. I note however that no notice seeking contribution or indemnity has been served by the first named Defendant on the second named Defendant or the third named Defendant: however it would not be unusual for such a Notice to be served a relatively short period of time before the date fixed for the hearing of the action. In the ordinary course of events had the action been prosecuted by the Plaintiff with reasonable expedition it could have obtained a date for hearing within the period of 9 to 18 months following the striking out of the Plaintiff’s motion for further and better discovery on the 16th January 1997 that is during the legal year 1997-1998. Having regard to the trading history of the third named Defendant I am not satisfied as a matter of probability that had the first named Defendant prior to the liquidation obtained a Judgment for contribution or indemnity during that period the third named Defendant would have been in a position to satisfy the same. In these circumstances whether or not the third named Defendant was in liquidation is unlikely to have been a circumstance which would lead the second named Defendant to adopt an attitude to the litigation different to that which he is now adopting. Accordingly I do not think that the circumstance that the third named Defendant has gone into liquidation is one which renders the delay prejudicial to the first named Defendant.
14. The first named Defendant further claims to be prejudiced in that it is now unlikely that the second named Defendant will appear at the hearing and that they will be denied his evidence and which evidence would be likely to benefit the first named Defendant firstly in enabling it to test the account of negotiations between the Plaintiff and the second named Defendant which would be given in evidence adduced on behalf of the Plaintiff and secondly on the issue as to implied authority of the second named and third named Defendants to bind the first named Defendant. While I can have no knowledge of the evidence which the second named Defendant might give if available as a witness it is appropriate that I should assume for the purposes of this application that it could be of assistance to the first named Defendant. Whatever might be the attitude of the second named Defendant to the claim against the third named Defendant having regard to its liquidation the circumstances in relation to the claim against him personally are not altered by the liquidation of the third named Defendant. Any Judgment obtained against the second named Defendant in these proceedings can readily be enforced in the United Kingdom. For this reason it is difficult to see that the liquidation of the third named Defendant should be a factor influencing him in deciding to take no part in these proceedings in his personal capacity: the non availability of the third named Defendant to bear some or all of an award of damages might be expected to cause him to take all steps to avoid personal liability. Accordingly as a matter of probability having adopted the attitude that he will take no part in these proceedings he would have adopted a like attitude had the liquidation of the third named Defendant not taken place. It is to be expected that someone in the second named Defendant’s position would be at least as anxious to defend himself against personal liability as he would be to protect form liability the corporate entity through which he traded. The absence of the second named Defendant’s evidence may also prejudice the Plaintiff in that there will not be available at the trial his account of the authority if any which he held from the first named Defendant to conclude the alleged agreement the subject matter of this action. I find that the non availability of the second named Defendant as a witness as a matter of probability is not as a result of the Plaintiff’s delay and the intervening liquidation of third named Defendant and accordingly is not a circumstance which I should take into account in considering the balance of justice.
15. Finally the Plaintiff instituted these proceedings on the 13th June 1995 in respect of an alleged breach of contract in February 1994. The Limitation Period would not have expired until February 2000. I take this into account in considering the Plaintiffs overall conduct of the action. The first named Defendant could have issued this Motion at a much earlier date – at any time after July 1998 – had it so wished. Rather it chose to delay doing so until the Limitation Period had expired. This I also take into account in determining the balance of justice.
16. In the light of all the foregoing I am satisfied that the balance of justice is in favour of allowing the action to proceed. Justice however requires that I impose a condition on the Plaintiff in prosecuting the action. Having elected to join the second named Defendant and the third named Defendants as Defendants rather than to have the first named Defendant join them as third parties the action must not be set down against the first named Defendant only but must be set down against the first named Defendant and the second named Defendant so that the first named Defendant’s claim for contribution and indemnity can proceed at the same time. I am assuming that there is no point in pursuing the third named Defendant : if I am wrong in this I will hear Counsel. I will hear Counsel on the costs of this application.
Guerin v Guerin and McGrath
[1993] ILRM 243; [1992] 2 IR 287
Costello J
Introduction
On 2 August 1964 Peter Guerin, the plaintiff, was then a young boy of four living with his parents in a rural part of County Tipperary. His elder sister had recently returned from the United States where she had met and had become unofficially engaged to a young man called Eamon McGrath. On that day Mr McGrath (named in these proceedings as the second-named defendant) was staying with the Guerins. At the suggestion of Peter’s father he drove a car owned by Peter’s elder brother, Gerard (the first-named defendant) to collect the family allowances from a post office about a mile and a half away. The journey became something of a family outing, as Peter and three other of the Guerins accompanied Mr McGrath in the car. Unfortunately, it ended in disaster as Mr McGrath crashed the car into a ditch on the way home and Peter suffered very serious head injuries.
These proceedings were not instituted until 1984 and since then have not been prosecuted with any great dispatch. The claim is that Mr McGrath (who subsequently married the plaintiff’s sister) drove negligently and is personally liable, whilst Gerard Guerin is vicariously liable as Mr McGrath was driving with his implied consent. The defendants filed separate defences denying liability. On the application of Gerard Guerin it was ordered that two issues be tried as preliminary issues (a) as to whether because of the plaintiff’s delay his claim should be stayed and (b) as to whether Eamon McGrath was Gerard Guerin’s servant or agent when driving his car at the time of the accident.
The Law
There is no statutory bar on the institution of these proceedings — what falls for consideration is whether in the exercise of its inherent jurisdiction to ensure that justice is done the court should stay this action. The applicable principles have been formulated by the then President of the High Court, Finlay P, in a judgment delivered on the 31 July 1979 in Rainsford v Corporation of Limerick quoted in Ó Domhnaill v Merrick [1984] IR 151, 153, as follows:
(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 on 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 of 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.
Examples of the application of these principles are to be found in Ó Domhnaill v Merrick [1984] IR 151; Sweeney v Horan’s (Tralee) Ltd [1987] ILRM 240; Toal v Duignan [1991] ILRM 135 and 140.
Findings of Fact
I have heard evidence from Paul Guerin who was a young boy of twelve on the day of the accident and who was in the car when it happened; Mrs Guerin, the plaintiff’s mother; the plaintiff himself (who, naturally could give no evidence on the circumstances of the accident); the plaintiff’s brother Gerard, the first named defendant, and a friend, William Russell (with whom he had made an arrangement about the driving of the car before going to England); Eamon McGrath, the second-named defendant; his wife (the plaintiff’s sister) and Miss Scales (the solicitor acting for the second named defendant in 1984 and since). In the light of the evidence I have made the following findings of fact.
(a) The accident happened when Eamon McGrath was negotiating a turn in the road on the way back from the post office. No other car was involved. I do not accept his evidence that it was caused because the brakes failed. If they had (a) Paul Guerin would have known about it but he did not; (b) Mr McGrath would have told the garda authorities that this was the cause of the accident but it is to be assumed he did not because he was prosecuted for dangerous driving; (c) he would have defended the prosecution had brake failure been the cause of the accident but instead he deliberately did not attend the hearing and was convicted of careless driving, and did not appeal. I conclude therefore that no prejudice has been suffered by the defendants because the delay had deprived them of the opportunity of investigating the claim that the brakes on the car failed — I am satisfied on the evidence that they did not.
(b) The plaintiff suffered severe head injuries in the accident. He was transferred to a specialist hospital in Dublin where he was detained for two weeks. The plaintiff sustained his first attack of epilepsy about 1973 or 1974, ie about nine years after the accident. He now claims that his epilepsy was caused by the accident. He suffered a second accident a couple of years after the first accident when, standing outside his home, the bumper of a car hit him and injured his leg. I am satisfied that he suffered no head injuries in this second accident. I conclude therefore that no prejudice has been suffered by the defendants because the delay has deprived them of the opportunity to investigate the possibility that the plaintiff’s epilepsy may have been caused or contributed to by the second accident — no head injuries were sustained in it.
(c) Nobody in the Guerin household could drive a car when Gerard went to England. He left his car behind him. Before going he arranged with a friend and a neighbour of the Guerin’s, William Russell, to call on Sunday to the Guerin’s and drive them to Mass. He left the keys of the car in his father’s custody. On the day of the accident Mr Guerin suggested that Eamon McGrath should take the car and drive to the post office and he gave him the car keys. Thus Mr McGrath was driving the car with the consent of Gerard Guerin’s father.
I do not accept the evidence that Gerard Guerin imposed any restriction on the persons who might be permitted to drive his car whilst he was away in England. The witnesses may have by now persuaded themselves that this was done but I think they are mistaken in their recollection. Gerard Guerin was a young man of 20 when he left home. His father was, in Mrs Guerin’s words, a ‘hard man to deal with’. He had a drink problem. His difficult personality is evidenced by the fact he had rowed with William Russell before the accident and he no longer drove them to Mass. I think it is inherently improbable that Gerard would have directed his father that only William Russell could drive the car. He left the car in his father’s custody knowing that neither he nor anyone else in his family could drive it, but he had no objection to the car being used for the convenience of the family. In the absence of specific restriction I think that there was an implied consent that the car could be used for family purposes by persons allowed to drive by Mr Guerin. I must hold therefore that Mr McGrath was driving with the implied consent of Mr Gerard Guerin on the occasion of the accident, and was his servant or agent.
(d) The delay in instituting proceedings was contributed to by a number of causes. Mrs Guerin explained that she and her husband ‘had never thought of suing’; ‘we were glad’, she said, ‘that Peter was alive’. Mr Guerin died in 1972 (Peter was then 12 years old) and Mrs Guerin explained that ‘she didn’t know about making a claim on Peter’s behalf’ and so none was made by her. When Peter grew up he, too, had no idea that he could make a claim against his brother or his brother-in-law until quite by chance, when getting a lift in a car from a solicitor, he told him in a casual conversation that he had epilepsy and about his accident, the solicitor offered to help him. This was in 1984. Having obtained formal instructions he issued proceedings on 21 December 1984.
Conclusions
I have reached the following conclusions.
(a) The delay of over 20 years in instituting these proceedings is indeed an inordinate one but it is one which I think the courts should excuse. The plaintiff’s family lived in one of the poorest sectors of the community, the permanently unemployed. With 14 children to rear and dependent on welfare payments for their livelihood they must have lived most of their lives at or below subsistence level. Their’s was an economically and socially deprived world from which the world so familiar to lawyers in which people sue and are sued was remote and arcane. If, as I am sure was the case, they did not appreciate that their son might have had a cause of action to compensate him for the injury he had sustained, I do not think they should be blamed for this. Nor should Peter Guerin be blamed when having attained adulthood he failed to seek legal advice. He left school at a young age and has since been mainly unemployed. It seems to me that he had accepted his misfortune with considerable fortitude and that it never entered his head, until a chance meeting with a solicitor in 1984, that he had a right to seek compensation for what had happened to him. I would excuse both the plaintiff’s parents and the plaintiff himself for the failure to institute these proceedings before 1984.
(b) Even if the delay is inexcusable the balance of justice would strongly favour the maintenance of these proceedings. The plaintiff has a very strong, indeed almost unanswerable, case that he was injured due to Mr McGrath’s negligent driving. If he can establish that his epilepsy was caused by the head injuries he sustained in the accident then his damages will be very considerable. An obvious and substantial injustice would be done to him if he is deprived of the opportunity to have the courts adjudicate on his claim. On the other hand no great injustice will be done to the defendants if the claim is allowed to proceed for the delay has not caused any significant prejudice either on the issue of liability or on the issue of damages.
(c) For reasons already explained I will not dismiss the claim against Gerard Guerin.
I propose therefore to make an order refusing to stay the proceedings on the grounds set out in paragraph (1) of the defence of the first named defendant and declaring that Eamon McGrath was driving Gerard Guerin’s car with his consent at the time of the accident which has given rise to these proceedings.
D v DO’K
[2009] IEHC 422;
Judgment of Mr. Justice Hedigan delivered the 6th day of October, 2009
1. The plaintiffs have brought proceedings against the first named defendant in respect of a series of alleged sexual assaults which are said to have taken place during the course of their medical treatment by him, on a series of dates between 1976 and 1991.
2. The first named defendant, who died in 2004, was at all material times a consultant psychiatrist at Belmont Hospital, County Waterford at which all the plaintiffs received treatment. His estate is party to the present proceedings by means of an authorised representative and is insolvent.
3. The second named defendant is a religious order whom, it is alleged, was the employer of the first named defendant at all material times.
4. The defendants are seeking the following, by way of a preliminary application to this Court:-
(a) An order pursuant to Order 122, rule 11 of the Rules of the Superior Courts (‘the Rules’), dismissing the plaintiffs’ claim for want of prosecution;
(b) An order pursuant to the inherent jurisdiction of this Court, dismissing the plaintiffs’ claim on grounds of inordinate and inexcusable delay; and
(c) An order pursuant to the inherent jurisdiction of this Court, dismissing the plaintiffs’ claim on the basis of a violation of the defendants’ rights to natural and constitutional justice, as well as prejudice arising therefrom.
I. Factual and Procedural Background
5. Each of the plaintiffs received, on various occasions between 1976 and 1991, psychiatric treatment from the first named defendant at Belmont Hospital, County Waterford. Some of the plaintiffs were treated as outpatients, while others were in residential care. Each of them has commenced a separate set of proceedings making allegations of, inter alia, sexual assault, trespass to the person and breach of their constitutional right to bodily integrity.
6. The plaintiffs’ claims lie not only against the first named defendant as the alleged assailant, but also against the second named defendant in its alleged capacity as the employer of the first named defendant. Specifically, the plaintiffs’ claim against the second named defendant alleges that it failed to provide adequate staff, care or supervision for the plaintiffs and that its agents knew, or ought to have known, that the first named defendant was engaged in the alleged conduct.
7. The distinct sets of proceedings brought by each of the plaintiffs have a long and convoluted history, involving various lengthy periods of delay and inaction. Certain incidents have undoubtedly contributed to the length of time which has passed. The fourth and sixth named plaintiffs, for example, chose to change their solicitors around six months after the issue of the plenary summons in each of their cases. Another contributing factor has been the failure by all of the plaintiffs, apart from the seventh named plaintiff, to deliver replies to particulars. In any event, and for ease of reference, the parties have created a detailed chronology of events which I set out below:-
Plaintiff
J.D.
J.F.
H.M.
M.M.
Date of Alleged Incidents 13th October 1980 Before 29th March 1990 July 1986 – January 1991 1985 – 1991
Plenary Summons Issued 10th July 1998 9th April 1998 10th July 1998 11th March 1998
Appearance Entered 4th November 1998 N/A 4th November 1998 N/A
Notice of Change of Solicitor Filed N/A N/A N/A 16th September 1998
Statement of Claim Delivered 3rd February 1999 27th May 1999 3rd February 1999 3rd February 1999
Request for Particulars by First Named Defendant 11th March 1999 24th June 1999 11th March 1999 11th March 1999
First Reminder Letter Sent 31st May 1999 28th February 2000 31st May 1999 31st May 1999
Second Reminder Letter Sent 28th February 2000 N/A 28th February 2000 28th February 2000
Death of First Named Defendant 20th January 2002 20th January 2002 20th January 2002 20th January 2002
Reconstitution of Proceedings
13th May 2004 13th May 2004 13th May 2004 13th May 2004
Plaintiff
L.N.
B.T.
M.O’B.
M.O’S.
Date of Alleged Incidents 1986 – 1991 January 1987 – June 1987 1983 – 1988 1976 – 1990
Plenary Summons Issued 10th July 1998 11th March 1998 3rd February 1998 1st September 2000
Appearance Entered 4th November 1998 N/A 4th November 1998 25th October 2001
Notice of Change of Solicitor Filed N/A 16th September 1998 N/A N/A
Statement of Claim Delivered
3rd February 1999 3rd February 1999 3rd February 1999 None Delivered
Request for Particulars by First Named Defendant 11th March 1999 11th March 1999 5th December 2003 N/A
First Reminder Letter Sent 31st May 1999 31st May 1999 31st May 1999 N/A
Second Reminder Letter Sent 28th February 2000 28th February 2000 28th February 2000 N/A
Death of First Named Defendant 20th January 2002 20th January 2002 20th January 2002 20th January 2002
Reconstitution of Proceedings
13th May 2004 13th May 2004 13th May 2004 13th May 2004
8. In relation to the above chronology, submitted by the first named defendant, it must be noted that in the case of the seventh named plaintiff, replies were furnished to the second defendants in December, 2003. Further particulars were sought in February, 2004 but replies have not to date been delivered. In relation to all bar the eighth named plaintiff, who has never served a statement of claim on the second defendant, the notices for particulars were served by the second defendant on the 15th September, 1999. In light of the delays apparent, the defendants brought motions on the 28th day of April 2008, seeking to dismiss each of the plaintiffs’ claims for want of prosecution and on grounds of inordinate and inexcusable delay.
II. The Submissions of the Parties
9. The defendants argue that each of the plaintiffs have been guilty of culpable delay both in the institution of proceedings (‘pre-commencement delay’) and in the prosecution of those proceedings, once instituted (‘post-commencement delay’). In respect of the pre-commencement delay, the defendants argue that in all cases the period of delay has been inordinate and inexcusable. They emphasise that the expanses of time which were allowed to pass, between the date of the final alleged incident and the institution of proceedings, range from 6 years and 3 months in the case of the fifth named plaintiff to 17 years and 9 months in the case of the first named plaintiff. These extraordinary periods warrant, in the defendants’ submission, the exercise of the court’s inherent jurisdiction to dismiss the proceedings.
10. As regards the post-commencement delay, the defendants submit that the passage of time has given rise to serious prejudice as against them in the making of their defence. They point to specific factors such as the death of the first named plaintiff in 2002 and also to more general considerations such as the fading of memory in proceedings which are likely to be heavily reliant on oral testimony.
11. The plaintiffs accept that periods of pre-commencement delay and post-commencement delay have arisen but reject the suggestion that either period is sufficient jointly or individually to merit the dismissal of their claims. In this regard, the plaintiffs appeal to the court’s responsibility to uphold justice and vindicate the rights of all citizens. They emphasise the profound and damaging effect which the alleged heinous acts of the first named defendant have had against them.
12. In terms of pre-commencement delay, the plaintiffs assert that issues relating to the Statute of Limitations are matters for defence at trial. In any event, they make clear their intention to adduce medical evidence to the effect that they lacked capacity to bring their claims within time owing to the psychological trauma which was occasioned by the alleged acts of the first named defendant.
13. With respect to post-commencement delay, the plaintiffs accept that the period which has elapsed in each of their cases has been inordinate. However, they contend that this delay has been excusable owing to the extreme difficulty which they feel in confronting the events of the past and thereby providing appropriate instructions to their legal advisers. Some of the plaintiffs have also suffered from diagnosed mental and physical illness during the relevant period which they submit has served to further exacerbate the situation.
14. As to the balance of justice in the case, the plaintiffs point to a number of factors which, they submit, weigh in their favour. They emphasise that at no time have the defendants attempted to deny the allegations made. They also stress the fact that since the commencement of proceedings, it appears that the second named defendant did not fully investigate the allegations, review the medical records of the plaintiffs or interview potential witnesses. The plaintiffs contend that these points, in addition to the seriousness of the claims being made and the harm alleged, should stand in favour of a full resolution of the issues at plenary hearing.
III. The Decision of the Court
15. It is well-established that where issues arise as to both pre-commencement delay and post-commencement delay, each of these must be afforded separate treatment by the court. In the decision of McH. v. J.M. [2004] 3 IR 385, Peart J. considered the position and stated the following at page 395:-
“I am of the view that there are two separate and distinct tests, one the test set out in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 in respect of post-commencement delay, and the other, the Toal v. Duignan (No. 2) [1991] I.L.R.M. 135 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 case ought to be different.”
16. In respect of pre-commencement delay, the classic exposition of the principle to be applied was laid down in the Supreme Court decision of Ó Domhnaill v. Merrick [1984] I.R. 151. In that case, Henchy J. made the following remarks at page 157:-
“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.”
17. This statement of law was applied and endorsed by Finlay C.J. in the decision of Toal v. Duignan (No. 1) [1991] I.L.R.M. 135. The learned Chief Justice then went on to say the following, at p. 139, in relation to the test to be applied:-
“In the High Court it was held by Keane J. that the case was governed by the decision of this Court in O’Domnhnaill v. Merrick [1984] I.R. 151. I am in agreement with that view of the law. […] [T]he principles laid down by this Court in that case […] may be summarised […] 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.”
18. The court went on to expand upon this general principle, providing examples of the kind of situations in which it might be unfair to require a defendant to defend an action. Finlay C.J. stated at p. 142:-
“[I]t 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 which (he or) she would have to try to defeat an allegation of negligence on her part in an accident that would 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.”
19. The jurisdiction of the court to dismiss a claim on the basis of post-commencement delay is predicated, by contrast, not only in the court’s inherent jurisdiction but also in O.122, r.11 of the Rules. That provision states, inter alia, as follows:-
“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 in 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. […]”
20. The issue of post-commencement delay was afforded considerable treatment by the Supreme Court in the decision of Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459. In that case, Hamilton J. set out the following applicable principles at p. 475:-
“(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.”
21. It seems to me, therefore, that the key distinction between the test for pre-commencement delay and that of post-commencement delay is that the former focuses heavily on the position of the defendant, in particular any prejudice arising as against him, while the latter places greater emphasis on the conduct of the plaintiff and whether he can provide adequate justification for any period of culpable inaction on his part. I now turn to the application of each of these tests to the circumstances of the present case.
22. In respect of pre-commencement delay, it is clear from the decision of Henchy J. in Ó Domhnaill that a balance must be struck between the right of the plaintiffs to have recourse to the courts and the unfairness of allowing a claim of such vintage to proceed as against the defendants. In the present case and as noted above, the pre-commencement delay ranges from 6 years and 3 months to 17 years and 9 months from the last alleged incident of abuse. The case is undoubtedly one in which a heavy reliance will be placed on oral testimony, as envisaged by Finlay C.J. in Toal. The inevitable fading and diminution of memory which will have arisen throughout the period of pre-commencement delay is something which weighs in favour of the defendants’ application. As against this, the plaintiffs contend that they were incapable of taking action owing to the severe effect which the alleged acts of the first named defendant had upon them. While this argument is essentially one of incapacity, relating more to the issue of whether the plaintiffs’ claim is statute-barred, I am satisfied that it is nonetheless a factor to be taken into account in considering the appropriate exercise of the court’s inherent jurisdiction to dismiss proceedings.
23. It seems to me that pre-commencement delay must be assessed in the light of the circumstances which pertained on the date of initiation of proceedings. I am satisfied that in 1998, in respect of the first to seventh named plaintiffs, and 2000, in respect of the eighth named plaintiff, it would not have been unfair to require the defendant to defend the claims. At that time, the first named defendant was still alive and capable of meeting the claims against him, as the majority of the incidents alleged had taken place within the previous decade. The defendants’ capacity to fully defend the claim would undoubtedly have been impaired to some general extent but I am of the view that this unfairness would have been superceded by the plaintiffs’ right to seek redress in respect of the alleged heinous conduct a consequence of which may be taken as at least in part being a cause of the delay in issuing proceedings.
24. As to the post-commencement delay which exists within the case, it is apparent that in the years since the issue of proceedings, little or no progress has been made in respect of each of the claims. In the majority of cases, no positive step has been taken for over 11 years. There is evidence before the court to suggest that this effective standstill has occurred despite sporadic attempts on the part of the plaintiffs’ solicitor to move things along. The affidavits sworn herein by the solicitor for the plaintiffs makes clear that she was having the greatest difficulty obtaining any response from her clients. I accept that she was dealing with very vulnerable people. It is clear her clients had the greatest of difficulty in revisiting memories of the abuse they alleged. It is difficult for the court to avoid the suspicion that the plaintiffs themselves have little enthusiasm for bringing the present proceedings to a head. I can readily understand their reluctance. It is only human nature that victims of sexual abuse such as that alleged in the present case would be reluctant to revisit their memories of such an egregious breach of their trust and confidence.
25. Nonetheless, as the cases cited above indicate, the court has a clear duty to vindicate the rights of all citizens. This not only requires that individuals such as the plaintiffs should receive their right of access to the courts, but also that the defendants should have civil proceedings brought against them determined within a reasonable period. The court must further take account of Ireland’s international obligations with regard to the provision of justice within a reasonable time. This court in the recent case of Mannion v. Bergin and Others [2009] IEHC 165, stated the following:-
“In my view, to the factors set out [in Primor] 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.’
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 let 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.”
IV. Conclusion
26. Very little is offered by the plaintiffs by way of explanation for their extraordinary failure to progress the case since proceedings issued. I do not believe that the court can accept the assertion that the first defendant was capable of exercising any power or dominion over the plaintiffs after his death in 2004. Nor can I accept the argument that the defendants ought to have brought this motion sooner or brought motions to compel replies to particulars. In this regard the plaintiffs are arguing that the defendants were not sufficiently solicitous in taking them to task for their own delay. It seems a very unreal approach to take. The real argument advanced by the plaintiffs to explain their post-commencement delay is that they were simply unable to bring themselves to address questions that obliged them to relive the experience of which they complain. No evidence is produced to suggest there will be any change in this understandable attitude. The inevitable conclusion, therefore, must be that it is at least probable that were the court to refuse the relief sought herein the case would remain pending indefinitely.
27. The defendants have now waited eleven years since proceedings commenced in respect of events that occurred up to 33 years ago. Save in the seventh named plaintiff’s case, no particulars have been furnished despite the defendants’ demands. Even in that case, a request for further particulars has lain unanswered for over five years, the defendants having waited four years before that to receive what they considered to be inadequate details of the claim. The failure to provide these particulars of the claim must have prejudiced the defendants’ ability to seek out evidence to assist in defending themselves. The particulars sought were not of an especially onerous kind. I accept that they rose to little more than details of the claim that one would have expected to have been taken when instructions were first given. Even to date, no attempt has been made to furnish these particulars now outstanding in six cases for ten years, in one case for over five years and in the remaining case not even a statement of claim has been issued. Whatever the reason for this extraordinary delay, the defendants have undoubtedly been prejudiced thereby. The primary facts of the case are now almost certainly beyond their reach. The first named defendant is dead which must be greatly to the prejudice of the second named defendant, which is alleged to be responsible for his conduct. Those witnesses at the time who have not passed away are likely to have very impaired recollection. None of the delay can be attributable to the defendants.
28. No court wishes to strike out proceedings of any kind without good cause, much less proceedings where such cruel and egregious breach of trust is alleged as herein. Nevertheless, as the cases cited above show clearly, the courts have an obligation under both national and international law to ensure that parties who are sued have a trial of the issue within a reasonable time. Any trial that would now take place in this matter could not be said to have been within a reasonable time. Moreover, a trial conducted at such a distance in time from the events alleged could not in my view amount to a fair trial in the circumstances that I have found to prevail herein. For these reasons, I must grant the relief sought in this motion and dismiss the proceedings herein in accordance with paragraph 4(a), (b) and (c) of the notice of motion. I am informed by counsel that no order for costs is sought.
J O’D v Minister for Education and Science
[2009] IEHC 227
JUDGMENT of Ms. Justice Dunne delivered on the 13th day of May, 2009
The plaintiff herein issued proceedings by way of plenary summons against the defendants on 27th November, 2001. The plenary summons was served on the first, second and third named defendants on 10th April, 2003. It is not entirely clear when the plenary summons was served on the fourth named defendant but an appearance was entered on his behalf on 7th May, 2003, by Messrs. O’Flynn, Exhams & Partners, solicitors. O’Flynn, Exhams & Partners took over the defence of these proceedings on behalf of the first, second and third named defendants (“the State defendants”) on 24th July, 2006. A notice of change of solicitors was filed on that day. Thereafter, O’Flynn, Exhams & Partners have represented all of the defendants herein. The fourth named defendant herein is sued as the nominated representative of the Presentation Brothers, having been nominated for the purpose of these proceedings.
Following the entry of appearances by the defendants, a statement of claim was delivered herein on 13th November, 2003. The statement of claim herein alleges, inter alia, as follows:
“At all times material to these proceedings and in particular from the years 1968 to 1970, the plaintiff was a pupil at the above described school, and while therein, was subjected to a number of ongoing assaults of both a physical and sexual nature, which said assaults were carried out by members of the fourth named defendant’s school and/or by lay teachers under its direction and control, with the result that the plaintiff has suffered and continues to suffer severe personal injury, loss and other damage.”
The school in question is described elsewhere in the statement of claim as G. School, otherwise G. Industrial School/St. J’s School.
The liability of the State defendants is said to derive from their responsibility for the welfare of children within the State and, in particular, the welfare of children who were placed in institutions such as that operated by the fourth named defendant herein. Thus, it was alleged that the State defendants were vicariously responsible to the plaintiff for the alleged personal injuries, loss and damage. It was also pleaded against the State defendants that the allegations against them arising out of the same facts gave rise to a constitutional tort for which they were also liable in damages.
Following the delivery of the statement of claim, a defence was delivered on behalf of the fourth named defendant on 5th January, 2004. An exchange in respect of particulars took place between the plaintiff and the fourth named defendant between 5th January, 2004, and 10th May, 2005. A reply to the defence was furnished on 10th May, 2005.
A defence was delivered on 12th January, 2006, on behalf of the State defendants and particulars were also raised by them.
A notice of motion was issued herein on 16th May, 2008, on behalf of all the defendants, grounded on an affidavit of Richard Neville, solicitor. The relief sought in the notice of motion included the following:
“(a) An order dismissing the plaintiff’s claim for failure to commence the proceedings within the time limits provided for by the Statute of Limitations;
(b) an order pursuant to the inherent jurisdiction of the honourable court, dismissing the plaintiff’s claim by reason of his inordinate and inexcusable delay in prosecuting the same;
(c) in the alternative, an order pursuant to the inherent jurisdiction of this honourable court, dismissing the proceedings by reason of the fact that the matters at issue between the parties cannot now be fairly tried;
(d) further, or in the alternative, an order pursuant to the inherent jurisdiction of this honourable court, striking out the plaintiff’s claim as against the first, second and third named defendants, by reason of the fact that it is unsustainable and/bound to fail.”
As can be seen from the notice of motion, three distinct points are made by the defendants against the plaintiff, namely:
(i) the proceedings are statute barred;
(ii) the matters at issue cannot now be fairly tried by reason of the inordinate and inexcusable delay in the prosecution of the action and by reason of the fact that the matters at issue cannot now be fairly tried;
(iii) the action as against the State defendants is bound to fail.
So far as the last of these points is concerned, it was conceded by counsel on behalf of the plaintiff that the claim against the State defendants would not be pursued following the decision of the Supreme Court in the case of Louise O’Keeffe v. Leo Hickey, unreported, 19th December, 2008.
Mr. Gleeson S.C., on behalf of the plaintiff, made one other concession during the course of the hearing. He accepted that insofar as the plaintiff’s claim was for damages for physical abuse as opposed to sexual abuse, that element of the claim is statute barred.
It is now necessary to look more closely at the details of the plaintiff’s claim as set out in the statement of claim and the replies to particulars and to consider the affidavit of Richard Neville grounding this application and the replying affidavits of Eugene Murphy sworn herein on behalf of the plaintiff.
As mentioned previously, the plaintiff’s claim is stated to arise out of assaults of a physical and sexual nature whilst he was a pupil at the school run by the Presentation Brothers. The assaults were alleged in the statement of claim to have occurred from 1968 to 1970. In the particulars of personal injuries set out in the statement of claim, some detail is given of the nature of the assaults and the abuse alleged. It is the plaintiff’s case that he was a pupil at the school over a two-year period.
The details of the abuse can be summarised as follows:
The plaintiff was subject to a wholly unacceptable and abusive regime.
He was not provided with adequate food and was constantly hungry.
He worked in the fields and was so hungry that he would eat raw potatoes.
He was abused by a Brother C.
He was buggered by Brother C. on a number of occasions and touched inappropriately.
He was abused by two other teachers, a Brother E. and an unnamed Brother.
He alleged that he was beaten on a number of occasions and has outlined one particular beating by Brother C. with a billiard cue.
He complained of a lack of education.
He complained of a number of issues surrounding the death of his mother whilst he was a pupil at the school.
The plaintiff went on to describe difficulties in his later life which he attributed to the sexual and physical abuse alleged to have occurred during the two years he was a pupil at the school.
Particulars were raised in respect of the matters alleged in the statement of claim. The plaintiff was unable to furnish information in respect of the dates, details, times and places in relation to the alleged assaults, save in respect of a limited number of specific incidents. Even then, the amount of information provided was not such as to enable dates for any alleged incident to be ascertained save for one date which is said to have occurred two days after the plaintiff arrived at the school. Some further information was given as to the “unnamed” Brother and it appears that the plaintiff is of the view that this Brother may have been a Brother V.
In a subsequent letter of 19th August, 2004, the plaintiff’s solicitors furnished particulars of further physical and sexual abuse, including an incident of buggery, alleged to have been perpetrated by Brother C. and to a lesser extent, particulars of abuse alleged against Brother E. No dates were provided in relation to the alleged incidents. Finally, supplemental particulars of injury dated 10th May, 2005, were delivered. Nothing of significance turns on these.
Richard Neville, in the affidavit grounding this application, pointed out a curious feature of the plaintiff’s case. This was the description of the school herein as “an industrial school” and the fact that the plaintiff was of the view that he spent two years at the school. In fact, there was an industrial school at that location, but the industrial school closed in 1959, long before the plaintiff, who was born in 1956, became a pupil at the school. In addition, the records of the school show that the plaintiff was a pupil at the school then known as C.T., a fee-paying boarding school, for a period of six months only in 1969/1970. Apparently, he left the school at the Easter break in 1970, following the death of his mother which had taken place on 1st March, 1970, some three weeks earlier.
Mr. Murphy, the plaintiff’s solicitor, sought to clarify the confusion as to the plaintiff’s schooling, in his replying affidavit. He confirmed that the plaintiff did not attend an industrial school on the site. He accepts that Mr. Neville may be correct as to the length of time spent by the plaintiff in the school. He stated:
“The plaintiff remembers that he did not wish to go back to school and complained of illness.”
It will be seen from the above that there is confusion on the part of the plaintiff in relation to his time at the school and the nature of the school.
I now propose to deal with the specific points raised by the fourth named defendant in the notice of motion before the court. The first of those points relates to the Statute of Limitations 1957, as amended. It is contended on the part of the fourth named defendant, that the plaintiff is statute barred in respect, not just of the alleged physical abuse, but also in respect of sexual abuse. As mentioned earlier, it has been conceded, on behalf of the plaintiff, that the claim, insofar as it relates to physical abuse, is statute barred.
The relevant statutory provision is s. 48(A)(1) of the Statute of Limitations 1957, as inserted by s. 2 of the Statute of Limitations (Amendment) Act 2000, which provides as follows:
“S.48 (A)(1) A person shall, for the purpose of bringing an action –
(a) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not yet reached full age, or,
(b) against a person (other than the person who committed that act), claiming damages for negligence or breach of duty where the damages claimed consist of or include damages in respect of personal injuries caused by such act, be under disability while he or she is suffering from any psychological injury that –
(i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first mentioned act, and
(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially impaired.”
The points made by Mr. Neville, in his affidavit, in relation to this aspect of the case are that the plaintiff would have been under a disability until 1974, three years after he attained his majority. Mr. Neville went on to assert:
“As for the plaintiff’s claim for damages arising from the alleged sexual abuse, he has adduced nothing before this honourable court to indicate that he was suffering from any disability or dominion of such significance that his will, or his ability to make a reasoned decision, to commence this action was substantially impaired so as to entitle him to rely upon section 48 (A)(1) of the Statute of Limitations, as inserted by section 2 of the Statute of Limitations (Amendment) Act 2000, in order to extend the time for bringing these proceedings.”
Mr. Murphy, in his first replying affidavit sworn herein on 7th July, 2008, deals with these matters at some length. He set out the fact that the plaintiff attended for counselling with one Theresa Flack. He avers that the plaintiff was unable to deal with the issues arising in these proceedings prior to the counselling, notwithstanding that they had occurred many years earlier and that it was only after counselling that the plaintiff was in a position to attend a solicitor. He stated that the plaintiff first attended Ms. Flack in January 2001, and attended for legal advice for the first time on 3rd September, 2001. He went on to state that the plaintiff was incapacitated for a substantial period of time and could not deal with the issues until shortly prior to the commencement of the proceedings.
In a subsequent affidavit sworn by Mr. Murphy on 25th November, 2008, he expanded on this issue. He stated that the plaintiff would allege that he was under clear disability at all relevant times in that he had been the subject of significant sexual abuse. He also averred to the fact that the plaintiff has now come under the care of Dr. Helen Greally, a clinical psychologist, who provided a report to Mr. Murphy in August 2008. In the course of that report, Dr. Greally stated the following:
“From a trauma and emotional distress perspective, it is my opinion that Mr. O’D. did not have the capacity to make a complaint until he sought help through the national counselling service in early January 2001. Mr. O’D.’s presentation at his interview identified clearly that this counselling had a profoundly positive effect on his life.”
In the course of the oral submissions before me and in the course of the written submissions, counsel on behalf of the fourth named defendant, took issue with the admissibility of the report of Dr. Greally. It was contended that the primary facts upon which the opinion of an expert is based must be proved by admissible evidence. It was contended that there was no admissible evidence before the court such as would enable an expert evidence to give any opinion capable of being received as evidence. Dr. Greally’s report was also stated to be hearsay evidence in that she had not sworn an affidavit in the proceedings. Complaint is also made by the fourth named defendant that the plaintiff has not sworn an affidavit himself, setting out any of the matters relied on in this regard. Thus, the fourth named defendant has been deprived of the right to test the claims being made on the plaintiff’s behalf by way of cross-examination or otherwise because neither the plaintiff nor the expert witness on his behalf has sworn an affidavit. It was also suggested on behalf of the fourth named defendant, that the allegations of sexual abuse referred to herein were vague. In essence, the point made on behalf of the fourth named defendant is that there is an onus on a plaintiff to show that he has suffered a psychological injury, such that the case comes within the proviso contained in s. 48 (A)(1) of the Statute of Limitations. As there was no primary evidence before the court to show that he has suffered such a psychological injury, the expert evidence exhibited on his behalf is not admissible.
In support of the submissions on this point, reliance was placed by counsel on behalf of the fourth named defendant on the decision of the High Court in the case of R.T. v. V.P. [1990] 1 I.R. 545, a decision of Lardner J., in which he held as appears from the headnote, inter alia:
“That an expert witness might give his opinion upon facts which are either admitted, or proved by himself, or other witnesses in his hearing at the trial, or were matters of common knowledge; as well as upon a hypothesis based thereon, but evidence in relation to a respondent whom he had never met or examined, was inadmissible as being based on hearsay.”
I do not think that that decision is of great assistance in the context of the present case. That was an application for nullity. In the course of the trial of the action, a consultant psychiatrist, who was called to give evidence on behalf of the petitioner, gave evidence concerning the respondent. Counsel for the respondent objected to that evidence as hearsay as the witness had never met or examined the respondent. It was in that context that Lardner J. held that evidence in relation to a respondent whom he had never met or examined was inadmissible as based on hearsay. In the present case, it is clear that Dr. Greally furnished her report having interviewed the plaintiff on five separate occasions between 2nd February, 2004, and 7th April, 2004. Her opinion is, therefore, based on those interviews as opposed to opinions based on information provided by others. In the course of the judgment in R.T. v. V.P., Lardner J. at p. 551 of the judgement, referred to Phipson on Evidence at p. 561, and went on to quote a statement of the law contained therein as follows:
“ ‘An expert may give his opinion upon facts which are either admitted, or proved by himself, or other witnesses in his hearing, at the trial, or are matters of common knowledge; as well as upon a hypothesis based thereon.’
I accept this as a correct statement of the law and I find that Dr. Behan’s evidence in relation to the respondent whom he has never met or examined and her mental condition is inadmissible as being based on hearsay.”
As I have set out above, the position in the present case is quite different.
Reliance was also placed in this context on the decision in the case of J.F. v. D.P.P. [2005] 2 IR 174. That was a decision which arose in the context of an application for judicial review to restrain the respondent from proceeding with the prosecution of the applicant in relation to sexual offences dating from 1988, on the grounds of delay. In the course of his judgment, Hardiman J. at p. 183 stated as follows:
“I also consider that a refusal of access to the complainant for the applicant’s expert, subverts the right to cross-examination. Oral contradiction in a public forum is the culmination of the work of the cross-examiner but it is by no means the whole of it. All effective cross-examinations, not least of expert witnesses, are the result of intensive preparation. It is of the essence of the right to cross-examine that the cross-examiner, the advocate selected by the person impugned, should have access to the materials for cross-examination. Study and assessment of these materials is a vital part of the process of cross-examination. It is also a vital factor in the formulation of the advice an advocate gives to his client. In a case with a significant issue of expert evidence, this process of preparation will take place in consultation with the party’s own expert. If this expert is at a disadvantage vis a vis the other side’s expert, counsel will be at a disadvantage in conducting the cross-examination. It is devastating to an opponent for an expert to be able to reply to a proposition put to him in cross-examination, ‘I saw this person six times over six months and had every opportunity to form an accurate assessment of him. That proposition is a purely theoretical one formulated by a person who never saw the complainant at all’. It is simply not possible to deny that an expert who can say this is at a huge advantage over his colleague. It would be gross negligence for a solicitor, advised as this solicitor has been, not to endeavour to put in place assessment facilities for his own expert.”
That was a case in which the applicant sought to have the complainant in criminal proceedings assessed by an expert nominated by him, and the request was refused. In those circumstances, the applicant brought an application to strike out the relevant paragraphs of the statement of opposition and the supporting affidavits of a psychologist and the relevant parts of the complainant’s affidavit. This was refused by the High Court and the applicant appealed to the Supreme Court which allowed the appeal. It was submitted before me that the facts of this case were on all fours with that case.
I cannot agree with the submission that the fourth named defendant in this case is in the same position as the applicant in the case referred to above. First of all, that case was an application for judicial review in the context of a criminal prosecution. The issue before the court was a fair procedure point, and the essence of that point was that in circumstances where the respondent in those proceedings had access to a psychologist’s report in relation to the complainant therein, the applicant should have had the same access in order to be able to challenge the evidence of the complainant and of the expert. Obviously, there is a procedural difficulty in the context of the present case, given that the plaintiff herein has not sworn any affidavit and the report of Dr. Greally is put before the court as an exhibit in the affidavit of the plaintiff’s solicitor. That being the case, it is not open to the fourth named defendant to cross-examine either the plaintiff or Dr. Greally. It is somewhat surprising that having relied on the decision in the case of J.F. v. D.P.P., there was no reference to the fact that the plaintiff herein has, in fact, been examined by Dr. Harry Kennedy, a consultant psychiatrist, on behalf of the defendants, a point that emerged in the course of the oral submissions. There was nothing to stop the fourth named defendant from exhibiting a report of Dr. Kennedy, had it been seen fit to do so. It has to be borne in mind that part of the decision of the Supreme Court in J.F. v. D.P.P., was to the effect that:
“There was a positive requirement that an expert, called as a witness on behalf of the respondent and an expert who might be called on behalf of the applicant, had to be treated equally, and the placing of the respondent’s witness in a position superior to that of the applicants, was inconsistent with the right to fair procedures”.
The lack of fair procedures that existed in J.F. v. D.P.P. does not exist in the present case. In this case, the fourth named defendant has had the opportunity of having the plaintiff examined by an appropriate expert. Therefore, the lack of fair procedures present in that case does not exist in this case. The 4th defendant could have, as I have said, exhibited a report from Dr. Kennedy but chose not to do so. I am of the view that it would not be appropriate to disregard the evidence before the court in the form of the plaintiff’s solicitor’s affidavits, and the exhibits contained therein. It has to be borne in mind that that evidence has not been controverted in any way by the fourth named defendant. In those circumstances, it seems to me that it would be inappropriate to disregard that evidence. In this context, I also bear in mind the provisions of O. 40, r. 4 of the Rules of the Superior Courts which provides as follows:
“Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions on which statements as to his belief, with the grounds thereof, may be admitted. The costs of any affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall not be allowed.”
As the application before the court is an interlocutory application, it is therefore possible to proceed by way of affidavit evidence which includes hearsay evidence. Accordingly, I do not believe that there is any procedural defect in the affidavits before the court, such that the matters set out in the plaintiff’s affidavits ought to be disregarded.
In those circumstances, I am satisfied that, so far as the issue arises in relation to the Statute of Limitations, there is ample evidence before the court at this point in time to support the contention on behalf of the plaintiff that the plaintiff was suffering from a disability until 2001, such that it was not possible for the plaintiff to issue proceedings in relation to the matters complained of herein until that time.
Two further issues are raised by the fourth named defendant in respect of this particular case. It seems to me that to some extent the issues overlap. The first is a complaint as to delay in the prosecution of these proceedings since the inception of the proceedings. In the course of his first replying affidavit, Mr. Murphy, on behalf of the plaintiff, sets out a number of steps that have been taken by firm on behalf of the plaintiff in the course of the proceedings. He takes issue with the averment of Mr. Neville that no step was taken in the proceedings as between the date of delivery of the fourth named defendant’s defence on 5th January, 2004, and the service of a notice of intention to proceed on 20th December, 2007. Mr. Murphy then went on to outline a number of matters which were dealt with in the period of time concerned. Mr. Neville is quite correct in his averment in that, clearly, the matters described by Mr. Murphy, whilst they may have been steps taken by him in the course of the prosecution of the plaintiff’s case, do not amount to proceedings within the meaning of O. 122, r. 11 of the Rules of the Superior Courts, which provides as follows:
“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.”
There is no doubt but that there has been no proceeding in the action between 5th January, 2004, and the date of service of the notice of intention to proceed on 20th December, 2007. I accept that steps have been taken in the course of the action such as the furnishing of replies to particulars and that the issue of discovery was being dealt with in the intervening period of time. In addition, so far as the State defendants were concerned, it was necessary for the plaintiff’s solicitors to issue a motion in default of defence in October 2005. Nonetheless, so far as the fourth named defendant is concerned, there has been what could only be described as a want of prosecution.
The principles applicable to an application to dismiss for want of prosecution have been considered in a number of cases and those principles have been distilled in the course of the well-known decision in Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459, at pages 475 – 476, where Hamilton C.J. summarised the principles in a passage which is often quoted and which is so well-known that I think it is unnecessary to repeat it in the course of this judgment. That decision has also been considered more recently in a number of other judgments, most notably, perhaps, the judgment in the case of Stevens v. Paul Flynn Ltd. [2005] IEHC 148, which was subsequently upheld in the Supreme Court. Gilligan J. in the case of Comcast v. Minister for Enterprise [2007] IEHC 297, referred to the judgment of Clarke J. in Stevens v. Paul Flynn Ltd., stating as follows:
“It is clear from the judgment of Clarke J. in Stevens v. Paul Flynn Ltd. [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 page 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 greater obligations of expedition and against requiring the same level of prejudice as heretofore’.”
The decision in Stevens v. Paul Flynn Ltd. was a case dealing, strictly speaking, with dismissal for want of prosecution. This case is one in which there is not just a complaint in relation to want of prosecution following the commencement of proceedings, but is also a case in which the fourth named defendant relies on the inherent jurisdiction to dismiss a case by reason of pre-commencement delay when the circumstances are such that because of the delay it is no longer possible to obtain a fair trial.
As I have mentioned previously, there is a certain amount of overlap between an application to dismiss for want of prosecution, and to dismiss pursuant to the inherent jurisdiction of the court on the basis that the matters at issue cannot now be fairly tried. If one applied the Primor principles to the facts of this case, the first question to be considered is whether there has been inordinate and inexcusable delay in prosecuting the case by and on behalf of the plaintiff. Assuming one reached the conclusion that there had been inordinate and inexcusable delay, one would then proceed to consider whether the balance of justice lay in favour of dismissing the proceedings, or not, as the case may be. In other words, the court would have to consider the issue as to where the balance of justice lies. There is a passage in the judgment in a case called Birkett v. James [1978] A.C. 297, which is often quoted. Lord Diplock, in that case, said at p. 322 of his judgment that:-
“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.”
That passage has often been quoted with approval in this jurisdiction and is particularly apposite in relation to the facts of this case. This case commenced in 2001. It has proceeded at what could only be described as a leisurely pace. It concerns matters that go back to 1969, some forty years ago. Thus, this is one of those cases in which it could be said that it is the more incumbent on the plaintiff to proceed with all due speed. The issue of proceedings in 2001 in relation to matters which were then going back over thirty years, meant that the case should have been prosecuted with speed and dispatch. Instead, the proceedings were not served on the defendants until 2003. The statement of claim was not delivered until November of 2003. It became necessary for the solicitors for the plaintiff to serve a notice of intention to proceed in 2007. I have already outlined various other steps taken within the course of the proceedings and I do not think it is necessary to reiterate those issues at this point. I accept that, as stated by Mr. Murphy in his first replying affidavit, the case is complex and difficult but having said that it is important to have regard to the difficulties of defendants in defending claims brought so many years after the matters giving rise to the claim. In the circumstances of this case, I have no hesitation in reaching the conclusion that the delay in prosecuting the claim on behalf of the plaintiff is both inordinate and inexcusable.
Having reached the conclusion that the delay in prosecuting this case is inordinate and inexcusable, it is necessary for the court to consider the question of the balance of justice. In that context, it seems to me, that the issues that arise in this respect are to a large extent similar to those to be considered in the context of the application on behalf of the fourth defendant to dismiss the plaintiff’s claim by reason of the fact that the matters at issue between the parties cannot now be fairly tried. In that context, counsel on behalf of the fourth named defendant referred to the decisions in the cases of O’Domhnaill v. Merrick [1984] I.R. 151 and Toal v. Duignan (No. 2) [1991] I.L.R.M. 135. I will refer very briefly to a passage from the judgment of Henchy J. delivering the majority judgment of the Supreme Court in the case of O’Domhnaill v. Merrick at page 157 to 158 of the judgment where he stated as follows:-
“The question to be answered in this appeal, therefore, is whether the defendant should be required in the circumstances to seek to rebut an allegation of negligence on her part in an accident that happened virtually a quarter of a century before the trial, and to meet a claim for heavy damages for personal injuries suffered by the plaintiff in that accident when she first learned of such a claim sixteen years after the accident …. Whether delay should be treating as barring the prosecution of a claim must inevitably depend on the particular circumstances of the 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 the plaintiff’s need to carry on his or her delayed claim against the 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 …. 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 twenty-four years before the trial, and a claim for damages of which she first learned sixteen 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. 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 to any material or substantial way contributed to the delay, should be freed from the palpable unfairness of such a trial.”
Bearing in mind those comments, and the requirement to consider the balance of justice, it is necessary to look at the facts of this case. There are a number of facts that have to be borne in mind so far as the fourth defendant is concerned. The most serious allegations in this case are made against Brother C. Brother C died in 1992, long before any allegation was ever made against him by the plaintiff. Accordingly, the possibility of obtaining instructions from him in relation to the allegations was long gone even before the commencement of these proceedings. The plaintiff has also made allegations against a Brother E. There is no record of a Brother E or a Brother of a similar sounding name having worked at the school during the relevant time. There are also allegations made against a Brother V. It is not entirely clear whether the allegations against Brother V are of sexual or physical abuse. Given the circumstances, I think it is clear that the fourth defendant will have great difficulty in defending the plaintiff’s claim.
It goes without saying that the passage of time has an impact on the ability of a witness to recall accurately events that occurred in the past. The greater the passage of time, the more likely it is that a witness’s recollection of events will have dimmed. In the present case, a significant element of the prejudice to the defendant is caused by the fact that there are simply no witnesses available to refute the plaintiff’s allegations. It could be said that this is not the plaintiff’s fault – after all – if the plaintiff was under a disability by reason of the alleged abuse such that the proceedings were not commenced sooner, why should that delay avail the fourth named defendant? That may be an argument to be made by a plaintiff in respect of an application to dismiss by reason of the fact that the matters at issue between the parties cannot now be fairly tried because of the length of time which has elapsed since the events giving rise to the proceedings. It seems to me that the issue of the balance of justice in the present case cannot be decided on that basis alone. In this case, there is the added consideration of the inordinate and inexcusable delay in prosecuting the case once proceedings were commenced.
This case illustrates very clearly, in my view, the risks and dangers of an unfair trial inherent in an action commenced long after the events complained of. Assuming that the case proceeds to trial, it is unlikely that the case would be heard before the end of 2009. Accordingly, a trial would take place some forty years after the events complained of. It is clear that not only does the fourth named defendant have an impossible task in trying to defend the allegations made herein given the fact that there are now no longer any witnesses available to him to refute the plaintiff’s claims, but it is also clear that the plaintiff himself has difficulties with recollection in relation to the matters complained of in these proceedings. In the first instance, the plaintiff appeared to have believed that he had been in attendance at an industrial school. Clearly, that was not the case. Instead, he attended for a period of time at a fee paying boarding school. Secondly, the plaintiff appears to have been of the view that he spent two years at the school when, in fact, it appears that he spent less than a full academic year at the school. It appears that he spent just two terms at the school. Thirdly, the plaintiff has described instances of abuse committed by a Brother C. Although I think it is unfair to characterise the description of those events as vague, as has been suggested by the fourth named defendant, there is undoubtedly a lack of detail as to the times and specific places where these events are alleged to have occurred. Given the nature of sexual abuse, in particular, abuse which is not likely to take place otherwise than in private, a lack of detail is inevitably something that causes difficulty for a defendant. To use the phrase often quoted from a judgment of Hardiman J., there are no “islands of fact” that are easily or readily identifiable in respect of the allegations made herein. Fourthly, the plaintiff has made allegations against a named Brother, namely Brother E, in respect of whom there is no record of anyone of that or a similar name having worked in the school at the relevant time. Finally, the plaintiff has had difficulty in identifying a third Brother he believes was involved in abusing him. It is against that background that one has to consider the balance of justice. The dismissal of these proceedings at this stage would have an undoubted prejudicial effect on the plaintiff. His proceedings would be at an end and he would have no possibility of ever having a trial in respect of the issues raised in these proceedings. As against that, the fourth named defendant would have to face a trial in respect of which there is no witness available to refute the allegations made by the plaintiff. The allegations made against the fourth named defendant are vague to the extent that it has not been possible to ascertain the identity of two of those against whom the allegations are made. There are few details of locations or times or dates on which the abuse is alleged to have taken place. It is very difficult to see how a defendant could properly and fairly defend such allegations. This is particularly the case in circumstances where the plaintiff’s own recollection of the matters complained of is clearly so impaired on crucial issues by the passage of time as in this case. To paraphrase Henchy J.’s words in O’Domhnaill v Merrick, justice delayed puts justice to the hazard. It seems to me that there is a real and serious risk of an unfair trial in this case by reason of the delay in prosecuting these proceedings. I cannot see how the 4th defendant could reasonably be expected to defend these proceedings. I am therefore satisfied that the prejudice to the 4th defendant outweighs the undoubted prejudice to the plaintiff. For that reason, I propose to grant the relief claimed herein.
Carroll v. Carroll
[1998] 2 I.L.R.M. 218
JUDGMENT delivered the 5th day of March 1998 by Mr. Justice Peter Shanley
1. In these proceedings the Plaintiffs seek to set aside a conveyance made on the 3rd of May 1990 on the grounds that that conveyance was procured by undue influence and was in itself an improvident transaction. The property which was the subject matter of the conveyance of the 3rd of May 1990 was a public house together with residential accommodation situated at Burke Street, Fethard, County Tipperary and which was owned in fee simple by one Thomas Carroll Snr. By the conveyance of the 3rd of May 1990, Thomas Carroll Snr. conveyed his interest in the premises to his son Thomas Carroll Jnr.
“In consideration of the natural love and affection which Thomas Carroll
bears for his son, Thomas Carroll”
subject only to a right of Thomas Carroll Snr. to reside in the dwelling house attached to the public house for the remainder of his lifetime. The Plaintiffs are the legal personal representatives of Thomas Carroll Snr. now deceased and the Defendant is the legal personal representative of Thomas Carroll Jnr. who is also deceased.
2. Thomas Carroll Snr. married in 1959. Upon his marriage he decided that he would purchase a public house which he did by a conveyance dated the 31st of December 1960, whereby one Angela Kennedy conveyed to Thomas Carroll Snr. and his wife Sarah the premises at Burke Street, Fethard, County Tipperary. It appears that at the time he got married and at the time the public house was purchased, Mr. Carroll was in his late 40’s and suffering from arthritis. The business of the public house was thereafter run by Mr. Carroll’s wife Sarah (known as Sadie). She it was who assumed responsibility for the day-to-day management of all aspects of the business. While Mr. Carroll helped occasionally in relation to the business, he did not in any way interfere with the overall management of the business by his wife. By all accounts the marriage of Mr. Carroll and his wife was an extremely happy one, and there were three children borne of their union. Winifred was born on the 20th of February 1962; Thomas was born on the 11th of August 1964 and Mary Jane was born on the 8th of January 1968. As the children grew up in Fethard the family was known locally as a very close knit and happy family.
3. The first two of the children, Winifred and Thomas, started out at local schools. Winifred spent the last two years of her schooling as a boarder. Thomas went to a local school in Fethard. He was not particularly interested in academic studies and his main preoccupation and interest was in farming. A number of his uncles (brothers of his father) had farms near Fethard in County Tipperary. In particular, the Carrolls relations had a farm at Milltown, County Tipperary and at Killusty, County Tipperary. Young Thomas devoted all his free time to working on the farms and helping his uncles with the farm work. Mary Jane, the youngest of the three children, started her schooling in Fethard but the last five years of her school going years were spent as a boarder in Loretto Convent in Rathfarnhman in Dublin. Thereafter she attended Alexandra College for a further year doing a course in Commercial Studies. Throughout their childhood, when they were not away in Dublin, the children lived with their parents in the residential accommodation attached to the public house. The turnover and resulting profit from the business of the public house was such as to be able to finance the schooling of the three children and the maintenance of the entire family during these years. As soon as they were able to assist in the running of the public house the children did so, but from 1974 onwards Sadie Carroll had engaged the services of a full time barman (Noel Sharpe) in the public house.
4. Winifred, after her last two years in boarding school in Dublin, took a job as a secretary and lived in Dublin travelling home to Fethard every weekend. Eventually she got engaged to be married and got married in September of 1986. Unfortunately, her husband became unwell and was hospitalised and ultimately in February 1988 her marriage was annulled. Winifred purchased a house in Ballyboden in County Dublin with the assistance of a loan from a building society. She currently resides in that house with her sister Mary Jane Carroll. Mary Jane after she had left Alexandra College obtained a job in Dublin and commenced to reside with her sister after the break-up of her sisters marriage. Both of the sisters gave evidence in this case that every weekend they would travel down to Fethard County Tipperary and help out in the running of the public house. When Thomas Jnr. finished his schooling he spent a short time working in Dublin, but his real love was farming and he soon returned to Fethard County Tipperary so that he could help uncles in the running of their farms. As I have indicated, one of those farms was at Milltown, County Tipperary. It was owned by Patrick and Philip Carroll who were brothers of Thomas junior’s father. Sadie Carroll in 1988 arranged for Thomas Jnr. to acquire a one-third interest in the farmlands at Milltown, County Tipperary in consideration for Thomas Jnr. looking after his uncles Patrick and Philip, and agreeing to come and reside on the premises should he be required to do so, and in consideration of him helping in the management of the farm. On the 22nd of April 1988, Thomas Carroll Jnr. was registered as full owner, as tenant in common of one undivided third share of the property which was a farm containing approximately 185 acres. Apart from his interest in the Milltown farm, Thomas Jnr. also helped another uncle (Gus) at a farm at Killusty, County Tipperary. When his uncle Gus eventually died, in the early 1990’s, Thomas Jnr. was left one half of the farm at Killusty, County Tipperary which amounted to about 45.2 acres.
5. Sadie Carroll died of cancer on the 13th of June 1989. The family had known for some time that she had cancer and that she was dying. Both of her daughters came home as often as they could before the time she died, and both of them in any event came home every weekend to help and comfort both her and their father. During the time of her illness and when she became unable to run the public house business, Thomas Jnr. assumed control of the business during weekdays. At weekends both Mary Jane and Winifred helped in the running of the public house. The death of Sadie Carroll affected every member of the family deeply. Her husband was devastated. At the time of her death, he was in his late 70’s and suffered from a number of health complaints; he had severe arthritis which caused him a huge amount of pain and limited his mobility to a great extent. He had a heart complaint which had necessitated two minor operations for the implant of a pace-maker for his heart. He was suffering from a hearing deficit and also suffering from poor sight. Whilst all of these elements meant that he was, to a large extent, dependant upon his children to do things on his behalf, there was no evidence to suggest that his mind was in anyway impaired at that stage. He was, of course, extremely depressed at the passing of his wife and the phrase “devastated”
was used by a number of witnesses to describe the impact his wife’s death had upon him.
6. After the death of Sadie Carroll, Mary Jane stayed at Burke Street for a period of six months and during that time helped in the running of the public house and assisted her father in relation to day-to-day chores. Although Thomas had obligations in relation to his uncles at the Milltown farm, he nonetheless helped out in the running of the public house business and eventually he assumed responsibility for that business on a day-to-day basis. After the girls returned to Dublin, they came home to Fethard every weekend and when they were there at the weekends they also helped out in the public house. The business of the public house was “in the name of” Thomas Carroll Snr., it had never been in the name of Sadie Carroll or any other member of the family. There was a liability of the business to the Revenue Commissioners in respect of Valued Added Tax of some £20,000. Thomas Carroll Jnr. was concerned to raise money to pay off and discharge this liability to the Revenue Commissioners. He spoke to his sister Winifred about the possibility of the business being transferred from his father’s name into his name. Winifred Carroll recalls explicitly her brother asking her to ask her father to agree to sign over the running of the business to Thomas Carroll Jnr. Initially she said no, but eventually she did ask her father to let her brother run the business for the time being. Mary Jane Carroll recalls her brother mentioning the need to transfer the business to him for certain tax reasons, and she further recalls that some weeks later her brother told her that papers had been signed and that he would be running the business in the future. Winifred Carroll recalls being told by her father that Philip Joyce, a solicitor, had been in the family kitchen and that he, her father, had signed papers but that the papers just related to the running of the business. Winifred Carroll believed that the transfer of the running of the business to her brother from her father, was merely a temporary arrangement until she herself was in a position to come back home to Fethard to run the public house business. Mary Jane Carroll, on the other hand, believed that the transfer of the business to her brother was of a more permanent nature. Neither of the two daughters believed that their father had transferred any ownership in the property at Burke Street to their brother. Both of the daughters firmly believed that it was always the intention of their parents to treat the three children equally in terms of such assets as the parents had to divide among their children. Both Winifred and Mary Jane Carroll were
encouraged and comforted in this view by their father regularly saying to them that their home would always be there for them. They recalled him saying this both before and after the transfer dated 3rd of May 1990 – which is the transfer in dispute in this case. Neither of the girls believed that their father had intended to transfer any ownership in the property to their son by the deed of the 3rd of May 1990. While that is so, there is no suggestion from them that their son in anyway bullied or cajoled their father into transferring the property to him. Each of them is satisfied that, had the father in fact intended to transfer the property in the premises to their son in 1990, he would have told each of his daughters that that was what he had done.
7. The transfer was executed on the 3rd of May 1990. Preceding the execution of the transfer were, as I have already indicated, discussions between the children and Mr. Carroll Snr. as to the transfer of the business to Mr. Carroll Jnr. Mr. Philip Joyce, a solicitor of some twenty years practice, gave evidence that he was contacted by Mr. Carroll Jnr. in respect of a proposed transfer of the premises from Mr. Carroll Snr. to Mr. Carroll Jnr. It was indicated to him that there was a VAT liability that Mr. Carroll Jnr. was anxious to discharge. Mr. Joyce recalls visiting Mr. Carroll Snr. and sitting in the kitchen of the Burke Street premises discussing the question of the transfer with him. He recalls that Mr. Carroll Snr. told him that he wanted his son to have the premises without any conditions. Mr. Joyce recalls telling Mr. Carroll Snr. that he should have a right of residence and a right to be maintained and supported out of the premises. That first meeting with Mr. Carroll lasted about fifteen minutes. Thereafter Mr. Joyce prepared a draft transfer. He sent that draft to Mr. Carroll Jnr. and Mr. Carroll Jnr. responded to the draft (which contained provision for a right of residence and a right to be maintained and supported out of the premises) saying that Mr. Carroll Snr. did not want any maintenance or support provision in the deed of transfer. Mr. Joyce recalls visiting Mr. Carroll Snr. for a second time and discussing the provisions of the deed with him: Mr. Carroll Snr. said that he did not want to have any provision as to maintenance and support in the deed according to Mr. Joyce. Mr. Joyce said that he satisfied himself that Mr. Carroll Snr. understood matters fully. This second meeting lasted some fifteen to twenty minutes. Mr. Joyce recalls going to the meeting with two engrossed deeds, one which contained a maintenance and support provision, and the other which did not contain any such provision but merely provided for a right of residence. It was this latter deed which was executed by Mr. Carroll Snr. Mr. Joyce had kept a file relating to this conveyancing transaction: the file does not contain any attendance by Mr. Joyce relating to either of his meetings with Mr. Carroll Snr. The file contains correspondence, documents, and invoices relating to the transaction; all the correspondence was directed to Mr. Carroll Jnr; an invoice was ultimately raised in relation to all work done concerning the transfer and was addressed to Mr. Carroll Jnr. Given the nature of his initial instructions which were relayed to him by Mr. Carroll Jnr., it was understandable that Mr. Joyce was somewhat uncertain as to whom, strictly speaking, he was acting for in relation to the conveyancing transaction: on one view of events he believed that he was acting for Mr. Carroll Snr. up until the transfer had been completed, and that thereafter he acted for Mr. Carroll Jnr. That he acted for Mr. Carroll Jnr. thereafter is beyond doubt in that the file contains correspondence directed to financial institutions on behalf of Mr. Carroll Jnr., and contains undertakings given by Mr. Joyce on behalf of Mr. Carroll Jnr. to those financial institutions. While on one view of matters Mr. Joyce believed that he could be said to be acting for Mr. Carroll Jnr. up until the completion of the transfer, he quite properly allowed that his position was most probably that of a family solicitor who was, in fact, acting for both the transferor and the transferee of the property. Mr. Joyce agrees that he did not make any enquiries of Mr. Carroll Snr. as to whether or not he had any other assets apart from the premises at Burke Street, Fethard in County Tipperary. He also agrees that he did not ask any questions concerning the existence or otherwise of any other children of Mr. Carroll Snr. he agrees that he did not know of the close relationship all of the children of the Carroll family had with their father. He did not accept that, in effecting the transfer, he should have averted to what might be a worse case scenario, namely, that Mr. Carroll Jnr. would not support Mr. Carroll Snr. out of the assets which were being transferred. Equally he did not believe that he ought to have taken into account the possibility that Mr. Carroll Jnr. might die before his father thus possibly leaving his father (in the absence of any other assets) without any form of maintenance or support. Mr. Joyce did not believe that there was any obligation upon him to satisfy himself that Mr. Carroll Snr. had available to him other assets out of which he could be maintained and supported once he had transferred the premises in Burke Street to his son. While he agreed that he could have inserted into the deed of transfer a power of revocation, he believed that such would not have been a clause which would have allowed any money to be raised on the security of the premises from a financial institution. Mr. Joyce was quite firm in his view that he had got clear and unambiguous instructions from Mr. Carroll Snr. whom he described as appearing easy going and relaxed. Mr. Joyce noted that Mr. Carroll Snr. could read the newspaper and indeed had recognised Mr. Joyce. The effect of the transfer of the 3rd of May 1990 was that all of the assets owned by Mr. Carroll Snr. were transferred to his son Thomas Carroll Jnr. and that the only reservation was that Mr. Carroll Jnr. was to hold the premises the subject matter of the transfer, subject to and charged with the right of Thomas Carroll Snr. to an exclusive right of residence in the dwelling house for the remained of his lifetime. Thomas Carroll Snr. died in his daughter Winifred’s arms on the 20th March 1992 in hospital. Between May 1990 and March 1992 there had been no disclosure whatsoever by either Mr. Carroll Snr. or Mr. Carroll Jnr. to his daughters of the fact that there had been a transfer of the property made on the 3rd of May 1990. Between May 1990 and March 1992, Winifred and Mary Jane Carroll had travelled down from Dublin to Fethard every weekend and continued to assist in the running of the public house at the weekends. Equally, Thomas Carroll Jnr. ran the public house business during the week days while his sisters were in Dublin. In this period of time from May 1990 until he died in March 1992, Mr. Carroll Snr. became increasingly more feeble and dependant on his family. He was unable to travel outside the house unless he was assisted by someone in doing so. His eyesight deteriorated; his arthritis, and the pain associated with it, got worse. His hearing also deteriorated and generally his health was declining rapidly.
8. Thomas Carroll Jnr. met Michelle Fogarty in 1991 or early 1992. They subsequently got engaged and ultimately married in September 1993. Michelle Fogarty was twenty-one years of age when she married Thomas Carroll Jnr. She recalls that when they decided to get married they had a discussion about the public house and the accommodation attached to it, and her recollection was that it was then that Thomas Carroll told her that he in fact owned the premises. She told the Court that she lived in the public house for the nine months prior to her marriage in September 1993. At that time there was still a permanent bar man, but when the bar man was having time off work she herself worked in the public house. She recalls that at this point in time her fiancee spent most of his time on the farm. After their marriage in September 1993, Thomas Carroll Jnr. and his new wife continued to reside at the premises in Burke Street as they had done prior to their marriage. Winifred and Mary Jane Carroll continued to come down from Dublin to Fethard each weekend and stay in the premises and help in the running of the public house at the weekend.
9. Thomas Carroll Jnr. died as a result of a traffic accident on the 17th of January 1994. At the date of his death he owned a portion of the Killusty farm in County Tipperary and had an interest in the Milltown farm in County Tipperary as well as, of course, the premises which had been transferred to him by his father by the deed dated the 3rd of May 1990. Within a couple of weeks of the death of Thomas Carroll Jnr., Michelle Carroll (his wife) asked his sisters if they would give her a lift to the offices of Philip Joyce. They brought her to see Mr. Joyce and they themselves spoke to Mr. Joyce who indicated to them that they, Mary Jane and Winifred, no longer had any rights in relation to the property at Burke Street in Fethard. This news devastated Winifred Carroll and Mary Jane Carroll. However, they continued to travel at weekends from Dublin to Fethard and to stay at the premises in Burke Street. Michelle Carroll gave evidence of tensions growing between herself and the two sisters of her late husband. One particular incident brought these tensions to a head in June 1994. It was an incident which culminated in an allegation by the sisters that Michelle Carroll was not looking after their uncles at the Milltown farm. Michelle Carroll alleges that Winifred Carroll said to her “you were never good enough for him”. This evidence was corroborated by Jennifer Fogarty, a sister of Michelle Carroll, who heard Winifred Carroll speak such words. After this incident, Mary Jane Carroll and Winifred Carroll did not come down from Dublin to stay at the premises at weekends.
10. As early as 11th of March 1994, solicitors for Winifred Carroll and Mary Jane Carroll had written to Mr. Joyce asking him to furnish all relevant papers regarding the transfer of the property from Thomas Carroll Snr. to Thomas Carroll Jnr. That documentation was ultimately provided under cover of a letter dated 25th of July 1994. By letter dated 14th of November 1994, Ivor Fitzpatrick & Co. (the Solicitors for Winifred Carroll and Mary Jane Carroll) indicated to Mr. Joyce that their clients were challenging the deed dated the 3rd of May 1990. A Plenary Summons was issued on 9th of December 1994. Mr. Carroll and his wife Sadie Carroll had an account with the Irish Permanent Building Society at its branch at O’Connell Street in the City of Dublin. The monies deposited in that account were, according to the Plaintiffs, the proceeds of a lotto win (of some £5,000) and a win in a raffle (in or about the sum of £20,000). Mary Jane Carroll had won the sum of approximately £5,000 in the lotto and her mother had won the sum of £20,000 in a raffle. These monies were drawn down by the three children, namely Mary Jane, Winifred and Thomas Jnr. They each took an equal amount of the monies that were held on deposit together with the interest which accrued thereon. The Plaintiffs denied the suggestion put to them by Counsel for the Defendant that they alone had been the beneficiaries of the money placed on deposit with the Irish Permanent. They denied the suggestion that their father had intended to provide for them out of this deposit account and that he had provided for his son in a different way by the transfer to his son of the premises at Burke Street in County Tipperary.
The Submissions of the Plaintiffs
(a) Counsel on behalf of the Plaintiffs submits, firstly, that the relationship
between the Donor and the Donee was such as to raise a presumption of
undue influence. It was submitted that such a presumption can only be
rebutted by evidence that the Donor acted of his own free will and that the
11. Court could only be so satisfied as a matter of probability where there was
evidence that the Donor received independent advice, both legal and
otherwise, such that he fully appreciated what he was doing. In the alternative, the Plaintiffs submit that independently of the presumption of undue influence, there was actual evidence of undue influence. This is a submission which is based upon the factual position the Plaintiffs say existed at the date of the execution of the deed in 1990, namely:
(i) the deceased, Thomas Carroll Snr. was aged 79 years; he was infirm,
depressed in severe arthritic pain and had both bad eye sight and poor
hearing.
(ii) the deceased was entirely dependant upon the Donee, his son, for his
day-to-day needs.
(iii) the deceased did not ask for or obtain independent legal advice or any
competent independent advice of any kind.
(iv) the deceased was never advised as to the position of his daughters in
the event of his making the transfer of the property to his son Thomas
Carroll Jnr.
(v) the deceased never consulted his daughters at the time of the transfer
or afterwards as to the transfer and its effect which was entirely out of
character for the deceased.
(vi) the deceased obtained no advice as to the advisability of making a
provision for his own maintenance and support after the date of the
transfer of the property in 1990.
(vii) the deceased obtained no advice as to the wisdom of transferring the
entire of his assets to the Donee or the consequences for him in the
event of the Donee predeceasing him after acquiring the property from
him.
(viii) the transfer was entirely at odds with the deceased’s stated intention in
relation to the property throughout his life, namely, that his daughters
would always have a home in the premises.
(ix) the transfer was entirely at odds with the deceased’s stated intention to Winifred Carroll, namely, that he intended to transfer the business of the public house to his son on a temporary basis.
(x) the transfer was not read to or read by the deceased immediately prior
to the execution of it by him.
12. All of these matters the Plaintiffs submit should lead the Court to conclude, as a matter of probability, that the transaction was indeed the result of undue influence.
(b) Apart from the assertion of undue influence, the Plaintiffs also submit that the
transaction should be set aside on the grounds that it was improvident. It is
submitted that a transfer by the deceased to the Donee of all his assets,
without providing for himself and his maintenance and support out of those
assets, was entirely improvident. It is said that the deceased could have
provided for his own maintenance and support out of the assets which he was
transferring or, alternatively, provided (by way of a revocation clause) some
protection for himself, but did not do so.
The submissions of the Defendant:
(i) The Defendant allows that the relationship between the Donor and the Donee
did indeed give rise to a presumption of undue influence, but says that the
evidence was such as to establish as a matter of probability that the transaction
was the result of the free exercise of the will of the deceased and that in
consequence the presumption of undue influence was effectively rebutted.
13. It was submitted that:-
(a) the deceased obtained independent, legal advice from one Philip Joyce,
a solicitor, who said he acted for Thomas Carroll Snr. in the
transaction relating to the transfer.
(b) even if Philip Joyce acted for both parties in relation to the advice he
gave, that advice was objective and fair.
(c) neither Plaintiff had suggested that Thomas Carroll Jnr. had in fact
exercised any undue influence over the deceased Thomas Carroll Snr.
(d) all of the witnesses who knew Thomas Carroll Snr. were of the view
that he ” knew his own mind ” despite his frailty at the date of the
execution of the deed in 1990.
14. He (the deceased) knew that both of his daughters had been adequately
provided for out of an account maintained by the family at the Irish
15. Permanent Building Society in which a sum of £27,000 had been
deposited and which sum was divided equally between Mary Jane
16. Carroll and Winifred Carroll.
(f) if the mental capacity of the Donor was not in doubt at the time that
he executed the transfer, there could be no presumption of undue
influence.
17. The Defendants Counsel submitted that the presumption of undue
influence was rebutted as a matter of probability in the event that the
18. Court was satisfied that the foregoing matters of fact had been
established in evidence. If the Court was satisfied that the Defendants
had established in evidence the foregoing facts, such pointed clearly to
the Donor having exercised his free-will in the execution of the transfer
in 1990.
(ii) The Defendant further submitted that the Plaintiff was guilty of laches: it is
said that they first became aware of the deed in May 1990 and that they
thereafter acquiesced in the transfer of the property to their brother, and that
their delay resulted in the Defendant herself expending monies on the premises which would not have been expended by her in the event that she was aware the Plaintiffs actually intended to challenge the deed.
(iii) Finally, the Defendant submits that the deed was not improvident in its nature:
the deed provided for the right of residence of the Donor in the premises for
his lifetime and was made in contemplation of the Donee assuming the
business liabilities of the Donor to the Revenue Commissioners.
The Legal Principles:
(i) One of the grounds on which the Courts are prepared to set aside transactions
for value, or gifts, is where there has been undue influence exercised upon the
19. Donor or Transferor of the property. It has long been accepted that cases of
undue influence fall into two categories: the first being those where the
relationship between the parties to the transaction (or parties involved in the
transaction) is such as to raise a presumption of undue influence. The second
category arises where no relationship gives rise to any presumption of undue
influence, but the parties so alleging undue influence adduce evidence which
satisfies the Court, on the balance of probabilities, that the transaction was
not the result of the free exercise of the will of the Donor. As to the first
category, it is suggested, correctly in my view, that the law will not concern
itself with insignificant transactions and that the presumption will only arise
where one party to a transaction has derived a substantial benefit from it. The
relevant principles are well summarised by Costello J. in O’Flanagan &
Anor. -v- Ray-Jer Limited & Ors ., unreported 28th of April 1983 where he
stated (adopting the principles formulated by Cotton L.J. in Allcard -v- Skinner 36 CHD 145 at page 171) :
“The cases where a Plaintiff seeks to set aside a gift or other transaction on
the grounds that it was procured by undue influence have been divided into
two classes: firstly, those in which it can be expressly proved that undue
influence was exercised, in which circumstances the Court intervenes on the principle that no one should be allowed to retain any benefit arising from his
own fraud or wrongful act; secondly, those in which the relations between
the Donor and Donee have at, or shortly before the execution of a gift, been
such as to raise a presumption that the Donee had influence over the Donor
then the Court intervenes………….. on the grounds of public policy and to
protect the relations which existed between the parties and the influence
arising thereunder being abused”.
20. The categories of relationship which will give rise to the presumption are never “closed”, as Budd J. observed in Gregg -v- Kidd 1965 IR 183, and the
categories recognised in decided cases as capable of raising the presumption
include those of parent and child, lawyer and client, an individual and a
spiritual advisor, a patient and his doctor, an uncle and his nephew. Where the
presumption exists, it may be rebutted by evidence which establishes on the
balance of probability that the transaction was the consequence of the
exercise of the Donor of his own free will and not the result of undue
influence. Such evidence may be evidence that the Donor had independent
legal advice – or competent and honest lay advice. As Lord Hailsham L.C.,
said in Inche Noriah -v- Shaik Allie Bin Omar 1929 AC 126 at page 135:-
“It is necessary for the Donee to prove that the gift was the result of the
free exercise of independent will. The most obvious way to prove this is by
establishing that the gift was made after the nature and effect of the
transaction had been fully explained to the Donor by some independent and
qualified person so completely as to satisfy the Court that the Donor was
acting independently of any influence from the Donee and with the full
appreciation of what he was doing; and in cases where there are no other
circumstances this may be the only means by which the Donee can rebut
the presumption”.
21. It is to be noted from the advices of Lord Hailsham that he did not regard
independent legal advice, of itself, as being an essential element in rebutting
the presumption: independent advice by a suitably qualified person could
suffice.
(ii) Where the relationship between the parties to the transaction does not give rise
to the presumption of undue influence, but nonetheless a Plaintiff seeks to set
aside a transaction on such grounds, then the burden of proof is on the
22. Plaintiff to establish that the transaction in question was not the result of a
free exercise of the Donor’s will, but rather resulted from pressure of one kind
or another described as “undue influence” upon the Donor.
(iii) Apart from the Courts jurisdiction to set aside a transaction on the grounds of
undue influence, there is also a jurisdiction to set aside as “unconscionable”
other transactions where the parties to the transaction have unequal bargaining
positions and the weaker party has not been adequately protected. Hanbury
& Martins Modern Equity Fourth Edition (1991) at page 821 states that the
jurisdiction will only be exercised where:-
“Firstly, that one party was at a serious disadvantage to another by reason of
poverty, ignorance, or otherwise, so that circumstances existed of which
unfair advantage could be taken; secondly, that the transaction was at an
undervalue and thirdly, that there was a lack of independent legal advice”.
In Grealish -v- Murphy 1946 IR 35 Gavan Duffy J. expressly recognised that
the Court had jurisdiction to set aside a deed on the ground that it was an
improvident transaction: he referred with approval to the principle that:-
“Equity comes to the rescue whenever the parties to a contract have not met
on equal terms………. the corollary is that the Court must enquiry whether a
Grantor shown to be unequal to protecting himself, has had the protection
which was due by reason of this infirmity and the infirmity may take various
forms”.
(iii) Delay will not always dissentitle a Plaintiff to relief: the delay must be such
as to have given rise to an inference that the Plaintiff had acquiesced in the
infringements of the rights he now asserts, and the delay must also be of such
a nature as to have caused some detriment to the Defendant: see generally
Keane, Equity and the Law of Trusts in Ireland, at paragraph 17.16 .
CONCLUSIONS:
(i) The transfer in issue in this case related to property which had an open market
value in 1990 of between £100,000 and £125,000. The property represented
the only real asset of the deceased Thomas Carroll Snr. The transfer was one
from father to son. I am satisfied that the significant benefit obtained by the Donee from the transaction and the relationship between Donor and Donee are such as to raise a presumption of undue influence.
(ii) I am not satisfied that the Defendant has established as a matter of probability
that the transaction was the result of the free exercise of the Donor’s will such
as to rebut the presumption of undue influence. Mr. Joyce allowed that in substance and fact he was acting as the ” family solicitor” in the transaction for both parties. He saw the Donor on two occasions for a total of about 35-40 minutes, not all of which was devoted to the business of the transfer. It is clear that the Donor never read the transfer deed nor had it read to him by anyone else. While its contents were apparently discussed between him and Mr. Joyce, I am not satisfied that any real consideration was given to the fact that the Donor (a frail man, in dependant circumstance) was disposing of all his real assets without reserving to himself (by way of a revocation clause or by way of charging the property with his maintenance and support), any protection for his own future particularly in the event of a falling out with his son, or in the event of his son predeceasing him. It is, I think clear, that Philip Joyce was not aware of the family’s circumstances either in the context of the position of the other members of the family, the totality of the assets held by the family members or the assurances given by the Donor to other members of the family including the Plaintiffs as to their user of the Burke Street premises during their lifetimes. Thus, while I accept the evidence (which was not really disputed) that the Donor was a man who was mentally alert at the date of the transfer, I am not at all happy that at the date of the transfer he had the necessary independent advice (whether it was that of a legal advisor or a competent and qualified lay person) such as would persuade me that the transaction was made of his own free will. For completeness I feel I should express my conclusions as to other aspects of the evidence which I have heard and which has assisted me in further deciding that the Deed should be set aside. I should first of all say that all of the persons who gave evidence gave it truthfully: that is not to say that the witnesses had the same recollections or were of the same opinions: they were not; but neither were any of them attempting to over-state or exaggerate their evidence.
23. I was satisfied that the nuclear family to which the Plaintiffs belonged was indeed a close knit and caring family; I was satisfied that the Plaintiffs were extremely close to their father and he to them: I have little doubt that he did indeed constantly reassure them that there would always be a home for them in Burke Street. His failure (between 1990 and 1992) to disclose to Winifred Carroll and Mary Jane Carroll the actual transfer of the property to their brother (as opposed to the running of the business) was not, in my view, likely to have been an act of concealment; it is more likely that Mr. Carroll Snr. did not truly understand or appreciate the nature and effect of the 1990 Deed which he had executed in favour of his son. Equally, I am satisfied that the Plaintiffs themselves did not become aware of the transfer of ownership until they were told the position by Philip Joyce in early 1994 at his offices. It is somewhat surprising that they, the Plaintiffs, appear never to have been told of the true position by their brother in his lifetime or by their sister-in-law who says that she herself was aware of the true position prior to her marriage to Thomas Carroll Jnr. The Plaintiffs’ ignorance of the true nature of the 1990 transaction was shared by the relatives of the Plaintiffs who gave evidence on their behalf: it was ignorance apparently shared by the community in Fethard as there was no-one save the Defendant, who claimed to know the true nature of the 1990 deal during the lifetime of the Donor. All of the foregoing matters strengthen me in my view that the presumption of undue influence has not been rebutted by evidence which establishes as a matter of probability that the transfer was the result of the exercise of the free will of Thomas Carroll Snr.
24. While I have concluded that the 1990 transaction should be set aside on the
grounds of undue influence, I should also state that I am also satisfied that the
transaction would be set aside and should be set aside on the grounds that it
was an improvident transaction. It is worth recalling that the Donor disposing
of the Burke Street premises was disposing of the only real asset he possessed.
25. He was disposing of it at a time when he was dependant on his son for his
maintenance and support. He was physically frail; he was in pain with
arthritis; he was hard of hearing and he had bad eyesight and he was
somewhat depressed. Notwithstanding his physical infirmities, he transferred
the premises without reserving to himself any right of maintenance and
support: and he did all this without the benefit of any independent advice
whether legal or otherwise. There are few Donors who more deserve the
protection of equity than Thomas Carroll Snr. did in 1990 in that few parties
would have come to a transaction on more unequal terms than Mr. Carroll Snr.
did in relation to his son. This in my view is a clear case where the equitable
jurisdiction can and should be invoked with a view to setting aside the
transaction on the grounds of its improvidence.
(iii) As to the issue of laches, I do not believe that there is any real substance to
this allegation; the Plaintiff’s became aware of the real nature of the
transaction in early 1994: at the end of July 1994 they obtained a copy of the
26. Deed from Philip Joyce for the first time; by November 1994 proceedings
which were ultimately issued were then threatened. While the correspondence
between the solicitors prior to November 1994 concentrated on claims to the
furniture in the premises, it was not such as to lead the Defendant in my view
to believe that the Plaintiffs had abandoned any claim to the premises and
any works executed on the premises at Burke Street by the Defendant in this
narrow period of time (from the delivery of the Deed in July 1994 to the threat
of proceedings in November 1994) cannot be said to have been induced by any acquiescence of the Plaintiffs in respect of their rights relating to the premises.
27. Accordingly this plea in the defence fails.