Delay & Fair Procedures
Cases
Pugh & Anor v P.G.M. Financial Services Ltd & Ors
[2020] IEHC 49 (23 January 2020)
Page 1 ⇓THE HIGH COURT[2020] IEHC 49[2014 No. 8907P]BETWEENJOHN PUGH & RORY HARTEPLAINTIFFSANDP.G.M. FINANCIAL SERVICES LIMITED,PATRICK MCENTEE, WEALTH OPTIONS TRUSTEES LIMITED,ROWAN ASSET MANAGEMENT LIMITED,PETER DUNNE, PRACTISING UNDER THE STYLE AND TITLE OFPETER DUNNE & CO,CANADA LIFE (IRELAND) LIMITED TRADING AS CANADA LIFE,IRISH LIFE ASSURANCE PLC TRADING AS IRISH LIFEDEFENDANTSJUDGMENT of Mr. Justice Sanfey delivered on the 23rd day of January 20201. This is an application by the first and second named defendants for an order pursuant tothe inherent jurisdiction of the court or pursuant to O. 36, r. 12 of the Rules of theSuperior Courts dismissing the plaintiff’s proceedings as against the first and secondnamed defendants for delay and want of prosecution. The first and second nameddefendants seek in the alternative orders pursuant to O. 19, r. 27 and 28 of the Rules ofthe Superior Courts striking out the plaintiff’s claims for fraudulent misrepresentation anddeceit, and dishonest breach of trust as against the first and second named defendantscontained in para. 3 of the general endorsement of claim in the plenary summons, andstriking out the plaintiff’s claims for the reliefs sought in para. 3 at the conclusion of thestatement of claim, including in particular the claim for fraudulent misrepresentation andmisstatement as against the second named defendant. The first and second nameddefendants seek these latter reliefs by reason of the alleged failure of the plaintiff toprovide particulars of those claims as required by O. 19, r. 5(2).2. It is clear that the application to strike out claims set out in the plenary summons andstatement of claim only arises in the event that the application to dismiss the plaintiff’sproceedings as against the first and second named defendants for want of prosecution isunsuccessful. It is therefore proposed to deal firstly with the application to dismiss forwant of prosecution, and in order to do so, it is necessary to examine the allegations setout in the pleadings, the positions of the parties and the issues arising therefrom.Factual Background3. The first and second named plaintiffs are described in the statement of claim as abusinessman and a sales director respectively. The second named defendant is afinancial adviser and is an employee and/or director of the first named defendant.4. It is alleged in the statement of claim – and not disputed by the second named defendant– that the first named plaintiff knew the second named defendant from approximately thelate 1980’s. The second named plaintiff was introduced to the second named defendantby the first named plaintiff. However, the second named defendant specifically denies inthe defence that either of the plaintiffs reposed trust and confidence in him as alleged inthe statement of claim. It would therefore appear that there is a fundamental disputePage 2 ⇓about the nature of the longstanding relationship between the plaintiffs and the secondnamed defendant.5. In 2007, the second named plaintiff was advised by the second named defendant inrelation to investment options for the balance available to him on the closure of thesecond named plaintiff’s defined benefit pension scheme. The first named plaintiff alsoreceived advice and recommendations from the second named defendant regarding hispension options. In late 2007 – or January 2008 as the first and second nameddefendants allege – the first and second named defendants organised a meeting that wasattended by the plaintiffs and a number of other people. The plaintiffs allege that thesecond named defendant hosted the meeting, introducing the parties who he said wouldbe involved in the organisation, operation and management of the “PGM Property Fund”.The plaintiffs allege that those present at the meeting were informed of a number ofmatters, including that the fund would invest in prime locations in central London; that itwould purchase properties in the £2m – £5m price range; that it would purchaseproperties with leases that could be tidied up, and the properties sold on in an eighteenmonth to three-year timeframe; that the fund would be a leveraged fund; and that therewould be a constant communication and reporting to investors. It is alleged that certainspeakers at the meeting gave assurances in relation to past performance of the value ofthe funds as set out in a promotional brochure, and that details were given of prestigiousproperties in central London.6. The first and second named defendants deny that they made any of the aforesaidstatements or representations, and allege that the presentation at the meeting was madeby representatives of the third named defendant and further say that neither the first orsecond named defendants had any input into the content of that presentation.7. The plaintiffs go on to allege that the second named defendant informed them that hewas the “lead investor” in the “PGM Property Fund/Rowan 4 Fund”. The plaintiffs allegethat other assurances were made to them by the second named defendant, and inparticular that the second named defendant encouraged them to invest in the fund whichthey refer to as the “Rowan 4 Fund”. This fund is described by the plaintiffs in thestatement of claim as a “seven year closed leveraged property fund”, and the secondnamed plaintiff claims that the recommendation of the fund to him by the second nameddefendant was… “inappropriate given his age, future earning capacity and risk profile”[para. 13 statement of claim].8. It is further pleaded in the statement of claim that the “second named defendantassumed personal responsibility to advise the plaintiffs fully, adequately and honestly inrelation to their monies…”, and that “to the extent that [the second named defendant]was acting as employee or director of the first named defendant it owed the same dutiesto the plaintiffs” [para. 14].9. At para. 33 of the statement of claim, particulars are given of the manner in which it isalleged that “…the first and second named defendants have breached their obligations tothe plaintiffs…”. It is clear from these particulars, which are quite general in nature, thatPage 3 ⇓the plaintiffs consider that the first and second named defendants had an ongoingresponsibility to them to advise them and act in their interests throughout the period ofthe investment. Two of these particulars give a clear sense of the sort of mattersgrounding the claims by the plaintiffs against the first and second named defendants:“33.4 Failing and neglecting to advise or account for what became of the fund assets or totake such steps as would be expected of a competent and professional investmentadvisor in the circumstances;33.7 Failing and neglecting to hold anybody to account, or question them and seekreasons for the catastrophic losses suffered by the Rowan 4 Fund, thus failing intheir role to advise anybody and identify fault for the losses;…”10. The statement of claim details claims against the third to seventh named defendants, andin the “reliefs” section of the statement of claim, makes a range of claims expressed ingeneral terms against “the defendants”. The only claim made against a specificdefendant is at para. 3 of the reliefs sought, which is as follows:“3. An order directing the second and third named defendants to disclose to theplaintiffs the precise sum invested by the second named defendant in the Rowan 4Fund, and if the sum thus disclosed renders his prior representations false,damages for fraudulent and/or negligent misrepresentation and misstatementagainst him”.11. In their defence, the first and second named defendants dispute utterly the terms of therelationship between the plaintiffs and the second named defendant as alleged by theplaintiffs, denying that they owed fiduciary duties to the plaintiffs or that the plaintiffsreposed trust and confidence in the second named defendant. It is admitted that thesecond named defendant informed the plaintiffs that he was the “lead investor” in thefund, and the defence asserts that this statement was “at all times true and accurate”.The defendants deny that the second named defendant assumed personal responsibilityto advise the plaintiffs in relation to their monies, or that he represented that they wouldbe best served by investing in the fund.12. It is sufficient to say that the first and second named defendants deny all of the materialallegations against them, and set out their position in the defence in a proactive wayrather than simply deny the matters pleaded against them. In relation to the claim atpara. 3 of the reliefs in the statement of claim as set out above, the first and secondnamed defendants plead as follows:“18. Having issued proceedings claiming fraudulent misrepresentation, deceit anddishonest breach of trust, the plaintiffs have provided no particulars in thestatement of claim in relation to any of those claims as required inter alia by O. 19,r. 5(2) of the Rules of the Superior Courts, such that those claims and allegationsshould now be withdrawn or struck out, and the first and second named defendantsreserve their right to bring an application to this honourable court in that regard.Page 4 ⇓13. It is very clear from the pleadings that there is conflict between the plaintiffs on the onehand and the first and second named defendants on the other in relation to virtually allaspects of their relationship, and in particular from 2007 onwards. The first and secondnamed defendants dispute the basis on which it is alleged that they dealt with theplaintiffs and their obligations, if any, arising out of these dealings. One must concludefrom the pleadings that the parties will require to adduce evidence as to the nature andextent of the dealings between them at least from 2007 onwards, and that such evidencewill be crucial to the court’s determination as to whether or not the duties and obligationsclaimed in the statement of claim were in fact owed by the first and second nameddefendants to the plaintiffs.The Proceedings14. The plaintiffs claim that they have suffered loss as a result of the actions of the variousdefendants, and duly issued a plenary summons on 20th October, 2014. This has givenrise to a plea in the defence of the first and second named defendants that the plaintiffs’claim is statute-barred. The plenary summons was not in fact served on the first andsecond named defendants until 19th October, 2015, the last day before the summonswould have lapsed.15. An appearance was not filed by the first and second named defendants until 23rdNovember, 2016. This followed a motion on behalf of the plaintiffs issued on 26thOctober, 2016 for judgment in default of appearance. The first and second nameddefendants’ solicitors explained the defendants’ inactivity in this regard by stating that, inApril 2016, after receiving correspondence from the plaintiffs’ solicitors requesting thatthe defendants enter an appearance, he carried out a search on the Courts ServiceWebsite which indicated that an order had been made on 11th April, 2016, the nature ofwhich was described on the website as “AMEND SUMMONS”. The solicitor inferred thatsuch an amended summons would have to be delivered to his clients and decided that heshould wait until the amended summons was served. Notwithstanding this explanation,the plaintiffs assert that what they say is a considerable delay of over a year in enteringan appearance should weigh against any delay alleged against them.16. In any event, a statement of claim was delivered on 18th March, 2016, apparently inresponse to a motion from one of the other defendants, and a resulting order of this courton 1st February, 2016. The first and second named defendants delivered a defence on10th July, 2017, and simultaneously issued a detailed notice for particulars. There wasno response to this notice, and the first and second named defendants issued a motion tocompel delivery of replies to the notice. By order of 26th February, 2018, this Courtordered the plaintiffs to reply to the notice within four weeks. Ultimately, the plaintiffsserved replies to particulars on 26th April, 2018.17. The first and second named defendants point out that the replies to particulars of 26thApril, 2018 followed three reminders in August, October and November 2017, followingwhich the first and second named defendants issued a motion, returnable for 26thFebruary, 2018, to compel replies to particulars. That motion was struck out on consentand an order of this Court was made giving a further four weeks to reply. When thePage 5 ⇓plaintiffs did not comply with this deadline, the solicitors for the first and second nameddefendants wrote again threatening a further motion. After some email correspondencebetween the respective solicitors, the replies were then delivered on 26th April, 2018.18. It is worth pointing out that, while certain documentation was furnished with the saidparticulars, the replies could charitably be described as “minimalist”, with most of thereplies stating that the matters of which particulars were sought were “matters ofevidence”, with the implication that the plaintiffs were therefore not obliged to reply tothe queries. In particular, detailed particulars were raised by the first and second nameddefendants in relation to… “the allegations of fraudulent misrepresentation, deceit andbreach of trust made in the plenary summons, but not particularised in the statement ofclaim…” and various specific queries were raised in this regard. Notwithstanding this, theplaintiffs simply replied that… “these particulars are a matter for evidence”.19. The first and second named defendants took the view – in my opinion correctly – thatthese replies were completely inadequate, and this led to a further comprehensive noticefor further and better particulars from the solicitors for the first and second nameddefendants on 15th May, 2018.20. No further step as between the plaintiffs and the first and second named defendants wastaken until the present notice of motion issued on 28th January, 2019.Delay21. In their written submissions, the first and second named defendants “…having regard inparticular to the significant pre-commencement delay…”, state that there has beeninordinate delay for the period including:(i) The period from the issue of the plenary summons on 20th October, 2014 untilservice of that summons on 19th October, 2015;(ii) The period from the issue of a Notice for Particulars by the first and second nameddefendants on 10th July, 2017 until 26th April, 2018 … “notwithstanding threereminders, a motion, a failure to comply with an order giving the plaintiff time toreply and a further four reminders…”; and(iii) The period from 26th April, 2018 until the issue of the present application on 29thJanuary, 2019.22. It was urged upon the court that there was very considerable delay on the part of theplaintiffs prior to these proceedings, and the first and second named defendants plead atparagraph 1 of their defence that the proceedings are in fact statute barred. Counsel forthe first and second named defendants argued that it was clear from the matters pleadedin the statement of claim that the plaintiff alleged that any breach of duty or obligation bythe first and second named defendants to the plaintiffs occurred in late 2007, when thesecond named defendant… “actively encouraged the plaintiffs to invest in the Rowan 4Fund. The decision to recommend a seven year closed leveraged property fund inparticular to the second named plaintiff was inappropriate given his age, future earningPage 6 ⇓capacity and risk profile” [para. 13]. Complaint was also made by the plaintiffs of the factthat the second named defendant informed the plaintiff that he was the “lead investor” inrespect of the fund, and it was alleged at para. 14 of the statement of claim that… “thesecond named defendant assumed personal responsibility to advise the plaintiffs fully,adequately and honestly in relation to their monies…”. In these circumstances, and giventhat the particulars at para. 33 of the statement of claim appear to allege failures on thepart of the first and second named defendants from the point of entering into theinvestment in question, the first and second named defendants submitted that, withoutprejudice to their plea that the proceedings are in any event, statute-barred, the periodfrom the entry into the investment until the issue of the plenary summons – a period of 6to 7 years – should be considered by this court as bearing on, and highly relevant to, thequestion of whether any delay on the part of the plaintiff was inordinate.23. The plaintiffs on the other hand contend that there was no delay in bringing the claim. Inan affidavit of 7th May, 2019 by John W. Carroll on behalf of the plaintiffs, Mr. Carrollavers as follows:“4. The plaintiffs respective pension investments in the pension product matured in orabout April, 2014 and June 2014. There has been absolutely no delay prior tobringing the claim, which was brought soon after the product matured. Due to alacuna in the statute of limitation, there is no date of knowledge extension forfinancial claims but the first and second named defendants have not brought anyapplication in relation to limitation…”24. While the statute of limitations issue is not one for determination in this motion, it wassubmitted by counsel for the plaintiffs that, far from being statute barred, the plaintiffswere not in a position to commence the proceedings until after the investments matured.In discussing whether this was a correct analysis in the context of the statute oflimitations in Gallagher v. ACC Bank plc., trading as ACC Bank [2012] 2 IR 620, O’DonnellJ. in the Supreme Court commented as follows: (at 662):“Since a claim cannot be initiated until a cause of action has accrued, then at leastin theory a plaintiff runs the risk of being non-suited if it were determined that thecause of action had not accrued at the time the claim commenced. The plaintiff inaddition to the risks of starting a claim too late, would now also face a real risk ofhaving started the claim too early, and would not know for sure until the case wasdetermined. That would turn the process of initiation of claims into a form oflitigation Russian roulette, and is a conclusion which I would only accept if driven toit by a clearly expressed legislative choice, or by settled precedent.”25. Counsel for the first and second named defendants submitted that, whether or not theclaim was statute barred, the fact that the proceedings had been initiated so long afterthe facts giving rise to the cause of action should result in the plaintiffs’ case beingregarded as one involving a “late start”. In those circumstances, the first and secondnamed defendants relied on the dicta of Irvine J. in Millerick v. Minister for Finance[2016] IECA 206 at para. 21 as follows:Page 7 ⇓“In assessing whether the High Court judge correctly classified the delay in thepresent case as inordinate it is relevant to note that the proceedings were issuedvery close to the expiry of the limitation period prescribed for claims of this nature.In such circumstances there is a special obligation of expedition on a plaintiff tomove matters forward once proceedings are commenced.”26. Counsel for the first and second named defendants also referred to similar dicta by IrvineJ. in Gorman v. Minister for Justice [2015] IECA 41, and the dicta of O’Malley J. in theSupreme Court case of Clare Manor Hotel Limited v. The Right Honourable Lord Mayor &Ors. [2018] IESC 41, at para. 82, in which O’Malley J. stated:“…where there has been significant pre-commencement delay, it is particularlyincumbent on the plaintiff to progress the matter with expedition…”.27. The plaintiffs also allege delay on the part of the first and second named defendants.They point to the fact that, having served the plenary summons on 19th October, 2015,they did not receive a memorandum of appearance on behalf of the first and secondnamed defendants until 23rd November, 2016. As I have set out above, the solicitor forthe first and second named defendants sought to explain this delay by amisunderstanding as to whether or not the first and second defendants were to be servedwith an amended summons. There does however appear to have been considerable delayon the part of the first and second named defendants in furnishing a defence, which wasnot delivered until 10th July, 2017, the statement of claim having been delivered on 18thMarch, 2016. The plaintiffs also contend, for the reasons set out above, that the pre-proceedings delay should not be taken into account at all, as they assert that no cause ofaction accrued until after the investments matured, and that the proceedings were issuedrelatively promptly after this event.The Law28. There was no dispute between the parties as to the law applicable to an application todismiss for want of prosecution, and indeed the principles are well settled. Theappropriate test was set out by the Supreme Court in Primor plc. v. Stokes KennedyCrowley [1996] 2 IR 459, and has been applied in numerous cases since then. The testwas succinctly summarised by the Court of Appeal in Millerick as follows:“18. The Court is obliged to address its mind to three issues. The first is to decidewhether, having regard to the nature of the proceedings and all of the relevantcircumstances, the plaintiff’s delay is to be considered inordinate. If it is not sosatisfied the application must fail. If, on the other hand the Court considers thedelay inordinate it must then decide whether that delay can be excused. If thedelay can be excused, once again the application must fail. Should the Courtconclude that the delay is both inordinate and inexcusable it must not dismiss theproceedings, unless it is also satisfied that the balance of justice would favour suchan approach.Page 8 ⇓19. In considering where the balance of justice lies the Court is entitled to have regardto all of the relevant circumstances pertaining to the proceedings including matterssuch as delay or acquiescence on part of the defendant and the potential prejudiceresulting from the delay.”Was the delay inordinate?29. It was submitted on behalf of the first and second named defendants that, in consideringwhether or not the plaintiffs’ delays are inordinate, I should consider the plaintiffs’ case asone involving significant pre-commencement delay. As the first and second nameddefendants put in their written submission “…the present case is one involving a ‘latestart’ on the part of the plaintiffs, having regard to the fact that the proceedings issuedmore than six years after their investment was made, which the first and second nameddefendants submit was after the limitation period had expired”.30. As set out above, the plaintiffs not only deny that their claim is statute barred, but do notaccept that there was any significant pre-commencement delay, due to what they saywas the necessity to wait until the investment had matured before a cause of action wascomplete.31. The effect of a “late start” was considered by Murphy J. in Hogan v. Jones [1994] 1 ILRM512. In that case, Murphy J. approved and applied a principle set out by Lord Diplock inBirkett v. James [1977] 2 AER 801 at p. 805 as follows:”It follows a fortiori from what I have already said in relation to the effects ofstatutes of limitation on the power of the Court to dismiss actions for want ofprosecution, that time elapsed before the issue of a writ within the limitation periodcannot of itself constitute inordinate delay however much the defendant mayalready have been prejudiced by the consequent lack of early notice of the claimagainst him, the fading of recollections of his potential witnesses, their death ortheir untraceability. To justify the dismissal of an action for want of prosecution thedelay relied on must relate to the time which the plaintiff allows to lapseunnecessarily after the writ has been issued. A late start makes it the moreincumbent on the plaintiff to proceed with all due speed and a pace which mighthave been excusable if the action had been started sooner may be inexcusable inthe light of the time that has already passed before the writ was issued”.32. In adopting this statement in Stevens v. Paul Flynn Limited [2005] IEHC 148, Clarke J.(as he then was) commented that delay in the commencement of proceedings is “…is afactor [which] may colour what happens later”.33. The issue of whether or not the plaintiffs’ claim is statute barred is not before the court onthe present motion. However, whether or not the plaintiffs’ claim is statute barred, thefact remains that the claims of the plaintiffs rely heavily on representations allegedlymade and advices given to them by the second named defendants in late 2007, andindeed the nature of the relationship which subsisted between the parties prior to thatperiod. Whether or not there has been pre-commencement delay or a “late start”, I amPage 9 ⇓of the view that the fact that the events on which the plaintiffs rely took place in excess ofsix years prior to the issue of the plenary summons places the same onus of expeditionon the plaintiffs as if the proceedings had been issued very close to the expiry of thelimitation period.34. In the present case, the first and second named defendants complain of a delay of a yearbetween the issue of the plenary summons and its service on those defendants, and thedelays between July 2017 and April 2018 and then between May 2018 and the issue ofthe present motion on 28th January, 2019. These periods amount cumulatively to some29 months. I consider this delay to be inordinate, particularly given what I consider to bean onus on the plaintiffs to prosecute the proceedings promptly and expeditiously for thereasons set out above.35. In particular, I would consider this to be a case where, having made the decision to issueproceedings, and given the passage of time from the events on which the plaintiffs’ claimsare based, the plaintiffs should have ensured that they were in a position to deliver astatement of claim to the defendants as soon as possible, and preferablycontemporaneously with delivery of the plenary summons. Instead, the plaintiffs’ solicitorwrote a detailed letter on 21st October, 2014 to each of the defendants querying variousof their dealings with the Rowan 4 investment. The letters were framed as “O’Byrneletters”, i.e. letters intimating that the plaintiffs would rely on s.78 of the Courts of JusticeAct 1936 in the event that the plaintiffs were unsuccessful.36. The first and second named defendants replied by letter of 11th December, 2014 robustlydenying liability and inviting the plaintiffs to withdraw their allegations. At this stage,there could be no doubt of the attitude of the first and second named defendants to theproceedings, and a statement of claim should have been delivered very promptlythereafter. Unfortunately, while there was a further letter from the plaintiffs’ solicitors toeach of the defendants or their solicitors on 13th May, 2015, the plenary summons wasnot served on the first and second named defendants until 19th October, 2015, and thestatement of claim was not delivered until 18th March, 2016.37. In relation to the delays in replying to particulars, I am also of the view that, in all thecircumstances, the plaintiffs should have been in a position to reply promptly andmeaningfully to the notice for particulars issued on behalf of the first and second nameddefendants on 10th July, 2017. The replies, furnished on 26th April, 2018 in response toan order of 26th February, 2018 of this Court compelling the delivery of replies, wereclearly inadequate and lead to a prompt request on 15th May, 2018 for further and betterparticulars. While some time would have been required to formulate a full and properreply to the notice for particulars of 10th July, 2017, the cumulative delay – from July2017 to April 2018, and from May 2018 to the end of January 2019 – of approximately 17months, in circumstances where there was an onus on the plaintiffs to expedite theproceedings, was clearly inordinate in itself.Page 10 ⇓38. When one takes into account the delay in serving the plenary summons, it is clear in myview that the cumulative delay by the plaintiffs in prosecuting the proceedings isinordinate. It then falls to the court to decide whether such a delay is inexcusable.Is the delay inexcusable?39. The plaintiffs seek to excuse the delays in a number of ways. As we have seen, Mr.Carroll’s affidavit of 7th May, 2019 on behalf of the plaintiffs asserts firstly that there wasin fact no delay in initiating the claim, as it was initiated “soon after the product matured”[Para. 4]. Mr. Carroll goes on to refer to the detailed letters sent on 21st October, 2014,the day after the issue of the plenary summons, to all the defendants, and to thesubsequent detailed letters written to each of the defendants or their solicitors on 13thMay, 2015. The first named defendant replied by letter of 11th December, 2014, signedby the second named defendant, but these defendants do not appear to have respondedto the letter of 13th May, 2015 sent to them.40. Mr. Carroll’s affidavit then refers to there being, after delivery of the statement of claim,in March, 2016, and “exchange of a very significant volume of motions and requests andreplies to particulars between the defendants and …the action is now at requests fordiscovery stage”. [Para. 7]. The claim against the sixth named defendant wasdiscontinued on 3rd February, 2016, as its assets had been transferred to the seventhnamed defendant. Mr. Carroll avers that, following negotiations with its solicitors, theclaim against the seventh named defendant was compromised and discontinued on 7thJanuary, 2017. The proceedings were not in fact served on the 5th named defendant, asthe plaintiffs had decided not to proceed against that defendant.41. It appears therefore that the claim is now being pursued only against the first fourdefendants. No pleadings at all were delivered to the fifth named defendant, and thecase against the sixth named defendant was discontinued against that entity beforedelivery of the statement of claim on the other defendants. There also does not appear tohave been any significant engagement by the plaintiffs with the seventh nameddefendants after delivery of the statement of claim in March 2016, other than theaforementioned negotiations as a result of which the proceedings against that defendantwere discontinued.42. In addition to the plaintiffs’ dealings with the first and second named defendants, thethird named defendant delivered a 25-page notice for particulars on 4th May, 2016.Replies to these particulars were delivered in response on 27th January, 2017. The thirdnamed defendant delivered a defence on 31st March, 2017.43. As regards the fourth named defendant, there was a difficulty with service on thatdefendant which necessitated an application by the plaintiffs to this Court for the renewalof the summons and the issue of a concurrent plenary summons for service on the fourthnamed defendant. An order was made in this regard by the High Court (Moriarty J.) on11th April, 2016. The fourth named defendant then applied to set aside that order. Thisresulted in a judgment being delivered by the High Court (McDermott J.) on 9thDecember, 2016, in which the fourth named defendant’s application was refused. TherePage 11 ⇓was then a motion for judgment in default of appearance from the plaintiffs against thefourth named defendant which came before the court on 22nd May, 2017. After anappearance had been entered by that defendant, the plaintiffs issued a motion forjudgment in default of defence which came before the court on 10th December, 2018, atwhich point the solicitors for the fourth named defendant requested time to deliver adefence. The fourth named defendant subsequently delivered a defence on 22ndJanuary, 2019.44. In summary, issues relating to particulars and the delivery of a defence as regards thethird and fourth named defendants were agitated between the delivery of the statementof claim in March, 2016, and December, 2018 when the plaintiffs’ motion for judgmentagainst the fourth named defendant came before this Court. The period between March2016 and December 2016 seems to have been taken up initially with the fourth nameddefendant’s unsuccessful attempt to set aside the order of 11th April, 2016 renewing thesummons. This issue was not resolved until the judgment and order of McDermott J. on9th December, 2016. While Mr. Carroll asserts in his affidavit that an appearance wasentered by the fourth named defendant “only after” the return date of a motion forjudgment in default of appearance on 22nd May, 2017, an exhibit to his affidavit detailinga chronology of events states that the appearance was entered on 23rd March, 2017.Even accepting that the appearance may in fact have been lodged shortly after andpresumably in response to the motion, the plaintiffs give no explanation as to why nomotion for judgment in default of defence against the fourth named defendant was issueduntil 17th October, 2018, over a year later.45. In all the circumstances, I do not accept that the delays of the plaintiffs as against thefirst and second named defendants are justified by events in the proceedings involvingthe other defendants. Responsibility for the delays between the delivery of the statementof claim (March 2016) and the delivery of its defence by the fourth named defendant(January 2019) cannot be attributed solely to the plaintiffs. Nonetheless, they wereresponsible for substantial delay during that period. While it may be argued by theplaintiffs that they were engaged in progressing the litigation against all defendants andthat this necessarily involved a slower rate of progress than if there were proceedingsagainst the first and second named defendants alone, it is asserted by the first andsecond named defendants – and not denied by the plaintiffs – that not until receipt of Mr.Carroll’s affidavit in the present motion were they apprised of the matters involvingprosecution of the claims against the various other defendants which the plaintiffs saycontributed to the delay in progressing matters against the first and second nameddefendants.46. It seems to me that, in circumstances where plaintiffs are under an onus due to a “latestart” to prosecute proceedings promptly and without further delay, there is aconcomitant onus on the plaintiffs to apprise the defendants of any difficulties which arecausing further delay, so that the defendants are assured of the plaintiffs’ intention toproceed with their claims, and are not left in the dark as to whether or not the plaintiffswill press on with the matter. A plaintiff who has fully apprised a defendant of delaysPage 12 ⇓involving other defendants is, apart from anything else, in a much better position to arguethat the defendant who has been informed of the reasons for the delay and does notobject to or complain about such delays, has effectively acquiesced in the delay andcannot subsequently complain about it. On the other hand, where there is unexplaineddelay on the part of a plaintiff whose proceedings have already commenced with a “latestart” a defendant may be able to argue with some force that it was entitled to assumethat the plaintiff had thought better of going ahead, and that it is prejudiced in thepreparation of its defence by the unexplained delay.47. Mr. Carroll asserts at para. 18 of his affidavit that “…the plaintiffs found it time-consumingto obtain comprehensive expert reports in this matter and …great time and effort wasrequired in order to obtain same”. However, no further details of the plaintiffs’ efforts inthis regard are given, nor is any explanation offered as to why expert reports were notobtained prior to the issue of proceedings, even if the investment had not matured.48. In all the circumstances, I do not accept that the matters put forward by the plaintiffs ascausing delay excuse their own inaction in that regard. I find therefore that the delays ofthe plaintiff are both inordinate and inexcusable, and in the circumstances it falls to thecourt to decide whether the balance of justice requires the proceedings to be dismissed.The balance of justice49. In deciding whether or not the balance of justice is in favour of dismissal or permitting theplaintiffs’ action to proceed, the court should“…aim at a global appreciation of the interests of justice and should balance all theconsiderations as they emerge from the conduct of and the interests of all theparties to the litigation. The separate considerations mentioned by Hamilton C.J. [inPrimor] should not be treated as distinct cumulative tests but as related mattersaffecting the central decision as to what is just.” [Fennelly J. in Anglo Irish BeefProcessors Limited v. Montgomery [2002] 3 IR 510, 518.]50. While all relevant matters must be taken into account, two issues invariably arise: firstly,whether the defendant was prejudiced by the plaintiffs’ delay; and secondly, whetherthere was anything in the defendant’s conduct which militated against granting the reliefssought.51. The first and second named defendants assert that the issues between the parties whichfall to be decided by the court will require both documentary and oral evidence. They saythat the evidence of witnesses with knowledge of events leading up to the investment bythe plaintiffs in 2008 which has given rise to the plaintiffs’ claim is vital to thepresentation of the first and second named defendants’ defence. They assert that theyhave been prejudiced by reason of the lapse of time and delay in the manner in which theclaim has been prosecuted.52. The second named defendant asserts that he suffers particular prejudice due to the factthat an allegation of professional negligence is hanging over him for a lengthy period ofPage 13 ⇓time. He relies on the Court of Appeal decision in Farrell v. Arborlane Limited[2016] IECA 224, in which the Court of Appeal confirmed that such a scenario can establishprejudice and justify the dismissal of a claim for want of prosecution. Farrell was citedwith approval by Baker J. in her decision in O’Leary v. Turner & Ors. [2018] IEHC 7, inwhich she stated:“…the present proceedings are inter partes professional negligence proceedings of atype that ought, in a general way, be processed with expedition because of thelikely reputational damage or other prejudice that may be suffered by a defendantto a stale action…”53. The first and second named defendants also submit that the prejudice which they sayarises in the present case is “significantly amplified” by the fact that the plaintiffs havealleged fraud against them. While the plaintiffs’ allegations in this regard appeared to bewithdrawn in Mr. Carroll’s affidavit, counsel for the plaintiffs clarified during the hearingthat the potential claim for fraudulent and/or negligent misrepresentation by the secondnamed defendant remain an issue in the proceedings, and the plaintiffs sought to resistthe alternative application by the first and second named defendants to strike out thoseclaims.54. The plaintiffs reject the notion that there is any prejudice to the first and second nameddefendants such as would justify the dismissal of the proceedings. Counsel for theplaintiffs submitted that the proceedings were initiated in a timely manner for the reasonsset out above, and that there has been no undue delay in prosecuting the action. It wassubmitted that the first and second named defendants are unable to point to anyparticular prejudice which will impair their ability to defend the case, such as theunavailability of a witness or relevant documentation.55. In my view, the first and second named defendants have demonstrated that they areprejudiced in their defence of the matter. Over five years have elapsed since theproceedings commenced, and approximately twelve years since the plaintiffs entered intothe investment on the basis of what they allege were advices and representations by thesecond named defendant. It is clear that oral evidence will be required as to the dealingsbetween the plaintiffs on the one hand, and the second named defendant on the other, asto the parameters of their relationship and the duties and obligations which arose from it.Their “late start” would have created difficulties for the first and second nameddefendants in this regard. These difficulties have now been compounded by theinordinate and inexcusable delay of the plaintiffs in getting the matter on to trial.56. I am also persuaded by the submission of the first and second named defendants thatthey suffer not insignificant prejudice by virtue of allegations of professional negligenceand fraud being made against them by the plaintiffs. In such circumstances, I am of theview that the first and second named defendants are all the more entitled to expectexpedition from the plaintiffs, given the nature of the allegations.Page 14 ⇓57. While the absence of a very specific prejudice such as the unavailability of a witness maycause the prejudice suffered by the first and second named defendants to fall within the“moderate” category referred to by Clarke J. (as he then was) in Stephens v. Paul FlynnLimited, recent jurisprudence suggests that such prejudice may justify the dismissal ofthe proceedings. In Millerick, Irvine J. suggested that “in the presence of inordinate andinexcusable delay even marginal prejudice may justify the dismissal of the proceedings.”O’Flaherty J. in Primor suggested that, once it is established that delay has beeninordinate and inexcusable, “…the matter of prejudice seems to follow almost inexorably”.This statement was quoted with approval by Quirke J. in O’Connor v. John Player & SonsLimited [2004] IEHC 99, in which the court concluded that the plaintiffs’ claim should bedismissed even though the defendants had not identified any specific prejudice whichwould be suffered by them as a result of the plaintiffs’ delay.58. In assessing whether or not the first and second named defendants are entitled to havethe claims against them dismissed, their own conduct in the proceedings must beexamined by the court. In this regard, the plaintiffs refer to what they assert aresubstantial delays on the part of the first and second named defendants in taking varioussteps in the proceedings. In particular, the plaintiffs assert that the first and secondnamed defendants delayed for approximately a year in entering their appearance, andfiled the appearance on 23rd November, 2016 only as a result of a motion on behalf ofthe plaintiffs for judgment in default of appearance. The plaintiffs also complain of thedelay in procuring a defence from the first and second named defendants. In this regard,a statement of claim was delivered on 18th March, 2016, but the first and second nameddefendants did not deliver their defence until 10th July, 2017. The plaintiffs assert thatthe first and second named defendants have contributed substantially to the delays in theproceedings to date.59. As I have outlined above, the first and second named defendants explain the delay inentering the appearance as arising from a misunderstanding as a result of which theyexpected the delivery by the plaintiffs of an amended summons, which was in factintended for the fourth named defendant. The first and second named defendants do notattempt to justify the delay in delivering the defence, other than to assert in writtensubmissions that “…that period was not unduly long when viewed in the context of theprogress of the proceedings”.60. Delay on the defendant’s part is certainly a factor which must be taken into account indeciding where the balance of justice lies. The weight to be attached to such a factor wasexamined by the Court of Appeal in Millerick. Irvine J. referred to the decision of FennellyJ. in Anglo Irish Beef Processors Limited and the distinction drawn in that case betweenculpable delay on the part of a defendant and mere inaction. Irvine J. refers to theconclusion of Fennelly J. “…that it is the plaintiff who bears the primary responsibility forprosecuting the action expeditiously and that lesser blame should be apportioned to adefendant where they have been guilty of mere inactivity as opposed to actual delay.”61. Having reviewed the authorities, Irvine J. stated as follows:Page 15 ⇓“36. It is clear from the authorities that the conduct of both parties to proceedings hasto be examined in considering an application of this kind. Having said that, thejudgment of Fennelly J. in Anglo Irish Beef Processors Limited makes clear that it isthe conduct of the litigation by the plaintiff, that is the primary focus of attention.A defendant does not have an obligation to bring the proceedings to hearing.Litigation involves one party bringing a claim against another and unless there issome behaviour on the part of the defendant that constitutes acquiescence in thedelay, his silence or inactivity is not material. It is obviously not a consideration onthe first question as to whether the delay is inordinate and inexcusable. The onlyway it can arise therefore is in the balance of justice. The question at that point iswhether the defendant caused or contributed to the plaintiffs’ delay or in somemanner gave the plaintiff to understand or lead him to believe that the defendantwas acquiescing in the delay. Mere silence or inactivity in itself is insufficientbecause that does not communicate acceptance to the plaintiff. This understandingof the law is also consistent with the later authorities of the Supreme Court and theHigh Court.37. In my view, the Minister in the present case cannot be deemed culpable for mereinactivity. After all, it is the plaintiff who commences legal proceedings and drawsthe defendant into the legal process. No defendant wants to be embroiled inlitigation with all of its potential adverse consequences, be they financial,reputational or otherwise. In many cases the plaintiff has no valid claim and theymay be no mark for any award of costs that a defendant may obtain following asuccessful defence of the proceedings. Often times, a defendant’s personal orprofessional reputation may be badly scarred regardless of having mounted asuccessful defence to a claim.38. Why should a defendant who believes that there is some chance that the plaintiff,because of their tardy approach, may not further pursue litigation against them beblamed for failing to take positive steps to have the action progressed regardless ofwhether or not they consider the claim against them well founded? If they believethe claim is likely to be successful, should they be criticised for failing to stir thereluctant plaintiff into action in proceedings that may cause them personal,professional or financial ruin? Likewise, if they consider they have a good defence,why should they be damnified for failing to embrace the potential additional costs ofensuring that proceedings that might otherwise wither and die advance to trial?39. For these reasons I am satisfied that in order for a defendant’s conduct to beweighed against it when the court comes to consider where the balance of justicelies, a plaintiff must be in a position to demonstrate that the defendant’s conductwas culpable in causing part or all of the delay. In other words a simple failure onthe part of a defendant to bring an application to strike out the proceedings will notsuffice. Such inactivity must be accompanied by some conduct that might beconsidered to amount to positive acquiescence in the delay or be such as wouldlikely give some reassurance to a plaintiff that they intend defending the claim, asPage 16 ⇓might arise if, for example, they were to raise a notice for particulars or seekdiscovery during a lengthy period of delay.”62. The plaintiffs complain of two delays – the failure to enter an appearance, and the failureto deliver a defence. In relation to the former, the evidence of Mr. Liam Collins, solicitorfor the first and second named defendants, is that the plaintiffs’ solicitors sent lettersdated 11th March, 2016 – shortly before the delivery of the statement of claim on 18thMarch, 2016 – to the first and second named defendants requesting that they enter anappearance. Shortly after that, the correspondence was passed to Mr. Collins, whocarried out the search on the Courts Service website which lead to his misunderstandingthat an amended summons remained to be served on his clients. He appears to haverealised his error when the plaintiffs served a motion for judgment in default ofappearance on his clients, and duly entered the appearance on 23rd November, 2016 inresponse to the motion. While obviously it would have been preferable if Mr. Collins hadraised the issue of the amended summons with the plaintiffs’ solicitors when he conductedthe search, I do not believe that the delay in entering the appearance was “culpable” inthe sense in which that phrase is used in the jurisprudence, nor do I accept that the delayconstituted acquiescence on the part of the first and second named defendants to thedelays for which the plaintiffs had been responsible up to that point.63. The second delay in delivering the defence is more problematic from the first and secondnamed defendants’ point of view. They do not attempt to excuse the delay, other than toassert that it was “…not unduly long when viewed in the context of the progress of theproceedings.” Being a failure to deliver pleadings, in my view this delay falls squarelyinto the category of “culpable delay”. The question to be resolved is the extent to whichthis failure on the first and second named defendants’ part should weigh in assessing thebalance of justice against the inordinate and inexcusable delay of the plaintiffs.64. As Irvine J. suggested in the passage from Millerick quoted above, one must analyse thedefendant’s conduct to see whether the inactivity on their part was “…accompanied bysome conduct that might be considered to amount to positive acquiescence in the delayor be such as would likely give some reassurance to a plaintiff that they intend defendingthe claim, as might arise if, for example, they were to raise a notice for particulars orseek discovery during a lengthy period of delay…” [Para. 39].65. While there was lengthy inactivity on the part of the first and second named defendantsbetween March 2016 and July 2017, there is no evidence or even assertion that this leadthe plaintiffs to believe that the first and second named defendants acquiesced in thedelay. There was no correspondence or notice for particulars emanating from the firstand second named defendants which might have lead the plaintiffs to believe that the firstand second named defendants had decided not to press the point in relation to delay, andhad thereby acquiesced in it. It certainly took the first and second named defendantsmuch longer than it should have to deliver their defence. It may well be that the sort ofconsiderations outlined at para. 38 of the judgment of Irvine J. in Millerick referred toabove were contemplated, and that the first and second named defendants consideredPage 17 ⇓that the lack of expedition of the plaintiff’s case suggested that the case might notultimately proceed to trial.66. While one can speculate as to the first and second named defendant’s motives, the fact isthat they took no action in the proceedings until compelled to do so by the plaintiffs’motion for judgment returnable on 22nd May, 2017. They then delivered on 10th July,2017 a full defence setting out their position in detail, and a lengthy notice for particulars.It seems to me that the first and second named defendants at that point accepted thattheir “heads down” approach had not worked. As we have seen, delivery of the defenceand notice for particulars was followed by lengthy delays on the part of the plaintiffswhich have lead ultimately to the present application.67. Far from acquiescing in the plaintiffs’ delay, the first and second named defendantssubmit that, given the delays between July 2017 and January 2019, the whollyinadequate replies to particulars (and in particular the reply to the legitimate queries inrelation to the fraudulent misrepresentation claim referred to at para. 18 above) and theinitial delay in serving the plenary summons, the balance of justice warrants the dismissalof the plaintiffs’ claim. There is no suggestion of acquiescence or culpable delay on thepart of the first and second named defendants since delivery of the defence in July 2017.The first and second named defendants are entitled to be concerned at the rate ofprogress of this litigation, and the manner in which the prejudice, which in my view, theyare undoubtedly suffering is being compounded by ongoing delays. In all thecircumstances, I do not believe that the delays for which the first and second nameddefendants are responsible signify acquiescence to the inordinate and inexcusable delayof the plaintiffs, or that they should disentitle the first and second named defendants tothe relief they seek.68. I should say also that, as Irvine J. commented in Millerick “…recent decisions of theSuperior Courts emphasise the constitutional imperative to bring to an end the all toolong standing culture of delays in litigation so as to ensure the effective administration ofjustice and basic fairness of procedures.” Irvine J. went on to quote with approval thedicta of Hogan J. in Quinn v. Faulkner T/A Faulkner’s Garage & Anor. [2011] IEHC 103 asfollows:“While as Charleton J. pointed out in Kelly v. Doyle [2010] IEHC 396 it would bewrong for the Court to strike out proceedings because of judicial disapproval, itmust also be acknowledged that experience has also shown that the courts mustalso become more pro-active in terms of undue delay, since past judicial practiceswhich had tolerated such inactivity on the part of litigants and which led to aculture of almost “endless indulgence” towards such delays led in turn to a situationwhere inordinate delay was all too common: see, e.g., the comments of HardimanJ. in Gilroy v. Flynn [2004] IESC 98, [2005] 1 ILRM 290 and those of Clarke J. inRodenhuis and Verloop BV v. HDS Energy Ltd. [2010] IEHC 465.”Page 18 ⇓69. In all the circumstances, I am satisfied that the balance of justice lies in favour ofacceding to the application of the first and second named defendants to dismiss theplaintiffs’ proceedings as against those defendants for delay and want of prosecution.Conclusion70. As I am of the view that the delays on the part of the plaintiffs of which the first andsecond named defendants complain are inordinate and inexcusable, and that the balanceof justice favours dismissal of the plaintiffs’ claim, I must accede to the application of thefirst and second named defendants in that regard.71. Accordingly, it is unnecessary for me to consider the reliefs sought at para. 2 of the noticeof motion seeking to strike out certain of the plaintiffs’ claims.
Result: The application on the part of the first and second named defendants was acceded to in seeking to dismiss the plaintiffs’ claim for inordinate and inexcusable delay.
Toal v Duignan (No. 2)
[1991] ILRM 140
Finlay CJ
This is an appeal brought by the sixth, seventh and eighth defendants originally named in these proceedings, against an order made in the High Court by Lynch J on 13 January 1989, refusing their application to dismiss the proceedings against them herein on the grounds that such a length of time had elapsed between the events on which such proceedings are based and the present, that it would be unjust for the defendants to be called upon to defend themselves.
Similar applications were brought on behalf of the first, second, fourth and fifth named defendants in this action before the High Court and were dealt with by Keane J who on 10 July 1986 made an order dismissing the proceedings. Against that order the plaintiff appealed to this Court and this Court on 27 November 1987 dismissed that appeal and upheld the order of the High Court. The reasons for that decision were stated in a judgment delivered by me as a reserved judgment on that date, with which the other members of the court agreed.
Lynch J in dealing with the applications brought before him in the High Court accepted the principles laid down in the decision of this Court on 27 November 1987, and having considered their application to the facts of the cases then before the court, concluded that they did not apply to the fact of these applications and accordingly refused to make the order dismissing the claim against these defendants.
In the course of the argument on these appeals a question was raised as to whether the court had jurisdiction to dismiss by reason of delay an action which was in fact commenced within a time limit fixed by Act of the Oireachtas.
My judgment in the previous appeal in respect of the other defendants in this case was based on an acceptance of the principles laid down in the judgment of Henchy J in O’Domhnaill v Merrick [1984] IR 151, with which Griffin J agreed.
I have carefully reconsidered the principles laid down in that judgment on the question as to the jurisdiction of this Court in the interests of justice to dismiss a claim where the length of time which has elapsed between the events out of which it arises and the time when it comes for hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself or herself against the claim made. I have also reconsidered the dissent from that view expressed by McCarthy J in the judgment delivered by him in O’Domhnaill v Merrick.
I adhere to the view expressed by me in the previous appeal in this case that the court has got such an inherent jurisdiction. It seems to me that to conclude otherwise is to give to the Oireachtas a supremacy over the courts which is inconsistent with the Constitution.
If the courts were to be deprived of the right to secure to a party in litigation before them justice by dismissing against him or her a claim which by reason of the delay in bringing it, whether culpable or not, would probably lead to an unjust trial and an unjust result merely by reason of the fact that the Oireachtas has provided a time limit which in the particular case has not been breached would be to accept a legislative intervention in what is one of the most fundamental rights and obligations of a court to do ultimate justice between the parties before it.
That view does not, however, of course mean that this is a jurisdiction which could be frequently or lightly assumed and there can be no doubt that the issue before the court always remains that which was identified by Henchy J in O’Domhnaill v Merrick where, at p. 157, in the course of his judgment he stated:
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.
I also accept, as I indicated in my judgment on the previous appeal in this case, that the existence of culpable negligence on the part of a plaintiff whose claim has been delayed is of considerable relevance but that it is not an essential ingredient for the exercise by the court of its jurisdiction.
Applying these principles to the facts of the present case I am again, of course, satisfied that it must be approached as a case in which the plaintiff has not got any responsibility for the delay of the actions instituted against the various defendants. The events which give rise to the claim against these three defendants are alleged to have occurred in 1971 when the plaintiff developed a condition of mumps and was attended by the eighth-named defendant and by her sent into the hospital maintained by the sixth and seventh-named defendants and there treated, coming again it is claimed subsequent to discharge from hospital, under the care of the eighth-named defendant.
I will deal with the two appeals that are before this Court in the order in which they were dealt with by the learned trial judge in the High Court in his careful judgment.
The eighth-named defendant’s motion
When this motion was before the High Court it was dismissed largely on the grounds that whilst the learned trial judge accepted that the eighth-named defendant’s recollection ‘may be very limited’ he found that she had not suggested that she had made any efforts whatsoever to inquire from her successor in her own medical practice or from her principals in relation to her practice as locum for other doctors as to what records they may have by reference to which she might refresh her memory relevant to the matters in issue in this case. He furthermore laid stress upon the fact that the sixth and seventh-named defendants had exhibited records which included a copy of a letter dated 2 July 1971 from Dr Rees of Harcourt Street Children’s Hospital to the eighth-named defendant enclosing a copy of a letter of the same date to Dr Culhane, the fifth-named defendant, giving details of the plaintiff’s condition on admission to hospital and thereafter whilst in hospital, and his treatment while in hospital.
This Court ruled at the commencement of this appeal that the applications were interlocutory in nature and that it was appropriate that in the interests of justice further evidence should be adduced by both sides, both of whom were anxious to have the court consider further affidavits which they sought to file.
As a result of this the eighth-named defendant filed a further affidavit indicating what I am satisfied were extremely exhaustive inquiries made by her to persons with whom she was associated in the particular form of locum medical practice which she engaged in in 1971 to try and ascertain whether any of them would have records deriving from her own records and supplied to them concerning her examination of the plaintiff at that time. No such records were available and I do not consider, as was contended, that a failure to obtain one of the records that might have been available makes this evidence less compelling than I consider it to be. The report referred to by the learned trial judge as having been sent by Dr Rees to the eighth-named defendant is one which she has no recollection of receiving, and it is of some significance that it appears to have been sent to the address of the fifth-named defendant. However, even on the assumption that it may have been received by the eighth-named defendant and since forgotten by her, I conclude that it does not assist in relation to the issues which clearly arise between her and the plaintiff. The real cause of action by the plaintiff against this defendant is an allegation that in conversation with his mother on two occasions when the question was specifically raised, she failed to give adequate explanation or advice concerning what she should have diagnosed as a problem arising from an undescended testicle.
Having carefully considered the position with regard to this defendant, I am satisfied that in principle it is in no different form or condition from the position of the fifth-named defendant in respect of whom an order was made by the High Court in 1986 and affirmed on appeal by this Court. I have no doubt that this eighth-named defendant who has no form of written record which is of any assistance to her concerning the events which occurred over a short period of time when she was called to deal with the plaintiff in an acute condition would find it virtually impossible to defend herself against the particular allegations that are now being made. Notwithstanding the clear interest of the plaintiff to try and maintain these proceedings against this defendant, and notwithstanding the prejudice which a dismissal of his action against this defendant may involve, I am satisfied that the balance of justice is in favour of dismissing this claim against this eighth-named defendant, and I would accordingly reverse the order made in the High Court on that motion, and dismiss the claim.
Motion of the sixth and seventh-named defendants
To a very large extent the appeal on behalf of these defendants was argued on the basis that they were in an identical position to the first-named defendants who were the Board of Guardians of the Coombe Hospital and that accordingly the principle which led to the dismiss of those defendants out of the action should apply to them as well.
Lynch J reached a different conclusion and I am satisfied that he was right. The vital difference between the position of the Coombe Hospital who were sued as being responsible in particular for the actions of the gynaecologist and paediatrician who attended the mother of the plaintiff at the time of his birth, as well as for other junior staff, either medical or nursing, who might have been involved at that time, is that in the case of the Coombe Hospital both the gynaecologist and the paediatrician involved were dead. The records which they might have maintained were wholly incomplete and wholly inadequate.
In the case of the present defendants, however, the doctor involved is alive; has apparently personal records as well as some personal recollection; he has not made any affidavit indicating any particular difficulty or disadvantage in giving evidence, although the affidavit filed on behalf of the hospital itself indicates the general disadvantage of a long lapse of time. There is no real evidence of a concrete kind with regard to the nature of the records which are available, nor to any attempt by this hospital to ascertain the whereabouts or availability of other persons who were involved at the treatment of the plaintiff at the relevant time. A rather comprehensive note of his treatment written by Dr Rees to the eighth and fifth-named defendants after his treatment in hospital is an immediate source capable of being used by him (Dr Rees) to revive his memory. In all these circumstances I am satisfied that these defendants have not made out a case for probable injustice which would entitle them to be dismissed out of the action. I would accordingly dismiss the appeal on their behalf and affirm the order of the High Court in their case.
GRIFFIN J:
On 28 June 1961 the plaintiff was born in the Coombe Hospital with an undescended testicle. That condition was either undiagnosed or untreated at that time. In June 1971 he was a patient of Dr Culhane, a general practitioner practising at Kill Lane, Foxrock. On a date in June, which is now alleged to be Wednesday 9 June 1971, the plaintiff was attended by Dr Culhane who diagnosed that he was suffering from mumps and advised bed rest and that she be called again if complications arose. Subsequently, now alleged to be on Monday 14 June, the plaintiff’s condition gave his mother great cause for concern in the early hours of the morning and his mother made several unsuccessful attempts to get Dr Culhane during the morning and early afternoon.
On the same evening he was seen by Dr Magill, the eighth defendant, who examined him and sent him immediately to the National Children’s Hospital in Harcourt Street having arranged on the telephone for his admission to that hospital. There he came under the care of Dr Rees, consultant paediatrician, and he must have appeared to be a very ill child. His mother remained in hospital with him during his stay there. It is now alleged that Dr Magill sent him to hospital because he was suffering from mumps orchitis, which I understand to mean inflammation of the testis. He was detained in hospital, according to the hospital’s records for two days, and according to his mother for four days.
It is alleged on behalf of the plaintiff that on 21 June, being the Monday following his discharge from hospital, Dr Magill was sent to the plaintiff by Harcourt Street Hospital, that she examined his genital area, that she was asked by the plaintiff’s mother why he was flat on one side of his genital area, and that she replied that it was like a woman having one breast larger than the other.
Dr Magill has no recollection of having attended the plaintiff when he was sent to hospital, nor of having visited him either at the request of the hospital or otherwise after his discharge. At that time she had a small general medical services practice in Dun Laoghaire with a very small number of private patients. She was primarily employed working as a locum for a number of doctors with whom she had a contract in writing to act as locum on their behalf for 40 weekends in the year. That arrangement continued from 1967 to 1978 — she retired from practice in February 1978. The contract provided that on each Monday following the weekend during which she attended patients as a locum she should report to each of the doctors employing her as to the attendances on each of their patients and the doctors would then enter the particulars of her attendances into their own patient records. She herself did not retain records of these visits, but she did keep notes, in a notebook, of the phone calls she received requesting patient calls and the names of the doctors on whose behalf she attended the patients. She now has only one of those notebooks, and that notebook does not contain any reference to attendances on the plaintiff. Dr Culhane was not one of the doctors for whom she acted as locum, but she sometimes attended patients who were ordinarily attended by other doctors where her regular principals agreed to act temporarily for such other doctors. She assumes that it was in such circumstances that she saw the plaintiff in June 1971.
Although she has no recollection of attending the plaintiff in June 1971, the contemporaneous hospital records show that she did attend him and sent him into hospital. It is not in issue that she attended him as a locum, and she avers that in the ordinary course any follow up treatment is carried out by the family doctor, that the hospital would have no reason to send a doctor to a patient’s home after the discharge, although it is common practice to send a letter confirming discharge to the family doctor, and that if such a letter had been erroneously sent to her she would as a matter of course have sent it to the plaintiff’s family doctor. She further avers that in respect of the conversation alleged to have taken place between her and the plaintiff’s mother after his discharge from hospital, having regard to her knowledge of the serious complications that can arise in the case of mumps in male patients, what is alleged to have been said by her is wholly uncharacteristic of her approach and style as a general practitioner, and she firmly denies making any such statement. She now has no records whatever for the year 1971 to assist her in establishing that such a visit and conversation did not take place.
The first intimation that Dr Magill had that any allegations were being made against her in relation to the plaintiff was more than 13 years later when she received a letter from the plaintiff’s then solicitors, Messrs Vincent and Beatty, stating that:
We act on behalf of Gregory Toal and in order to protect our client’s interest a High Court plenary summons has been issued and you have been named as one of the defendants in these proceedings ….
On 1 October 1984 a plenary summons had in fact been issued against the above-named eight defendants simply claiming ‘damages for negligence or in the alternative for breach of contract’. On 16 January 1986 a statement of claim was delivered. Having pleaded that the plaintiff was born with an undescended testicle, and the alleged negligence and breach of duty in 1961 of the Coombe Hospital and the named doctors attached to that hospital, it was alleged (inter alia):
4. In or about the month of June 1970 (sic) the plaintiff got mumps and was attended by Marie Culhane.
5. Owing to the negligence of the said Marie Culhane and the sixth, seventh and eighth defendants in and about the treatment of the plaintiff and their failure to inform the parents that an after-effect of the mumps can be orchitis the plaintiff’s left testis became atrophic.
On 28 May 1986 a detailed notice for particulars was served on behalf of Dr Magill. In the meantime the first, second, fourth and fifth defendants had applied to the High Court to dismiss the plaintiff’s claim as against them by reason of the lapse of time between the alleged acts of negligence on their part of which complaint was made and the institution of proceedings. These applications were heard by Keane J, who on 10 July 1986 granted the applications and dismissed the plaintiff’s claim as against those defendants. The plaintiff appealed to this Court and as the Chief Justice has stated in his judgment, this Court, in a reserved judgment delivered on 27 November 1987, dismissed his appeals.
On 20 October 1988 and 18 November 1988 respectively notices of motion were issued on behalf of Dr Magill, and of the hospital and its Board of Governors and Directors, in respect of similar applications. On 3 November 1988, being shortly after the service of the notice of motion and affidavits on behalf of Dr Magill, the plaintiff replied to her notice for particulars which had been delivered on 28 May 1986. It was there alleged that she attended the plaintiff and sent him to hospital on Monday 21 June 1971 and that she again called and had the conversation alleged with his mother on Monday 28 June 1971. It was also alleged that in October 1977 the plaintiff attended Dr Magill with a sprained foot, that X-rays were taken in St Michael’s Hospital, Dun Laoghaire, and that the plaintiff’s mother ‘asked her again ‘point blank’ about after-effects as the plaintiff’s mother was worried about latent epilepsy from encephalitis. Margaret Magill said nothing. The plaintiff was 16 years old.’
In the course of these proceedings in the High Court the detailed contemporaneous hospital records and copies of two letters written by Dr Rees to Dr Culhane and Dr Magill on 2 July 1971 were exhibited. According to the hospital records, the plaintiff was ‘admitted straight to the ward’ at 7.30 pm on 24 June 1971 (Thursday) and discharged on 26 June 1971 (Saturday). On 2 July 1971 Dr Rees wrote to Dr Culhane:
Re: Gregory Toal
Chanter Lands, 45 Silchester Park, Glenageary.
As I told you on the telephone this child was referred to me by Dr Margaret McGill with mumps and meningitis. He was said to have had mumps for five days and then developed headache, abdominal pain and vomiting.
On admission his temperature was 102.6° and he looked sick and drowsy. He had pain on moving his head. There was a bilateral parotid swelling. His reflexes were normal and his optic fundi also normal. He had definite neck stiffness … (The remainder of the letter deals with his treatment and investigations carried out and the results of them).
On the same date he also wrote to Dr Magill addressing the letter to 87 Kill Lane, Foxrock, which was Dr Culhane’s address:
I enclose a copy of my letter to Dr Culhane re: Gregory Toal who you sent in with mumps and meningitis. You were quite correct in your diagnosis and he settled down very well ….
It will be noted that the letter to Dr Magill was addressed and sent to her at Dr Culhane’s address. Dr Magill may or may not have received it. If she did receive it, she has no recollection of having done so.
Since the proceedings in the High Court the plaintiff has, by consent, been given leave to amend paragraph 4 of the statement of claim by substituting the year 1971 for 1970. He has also amended his particulars so as to allege that Dr Culhane diagnosed mumps on Wednesday 9 June 1971, that Dr Magill attended him and sent him to hospital on Monday 14 June 1971, that he was discharged from hospital on Thursday 17 June 1971, and was seen by Dr Magill again on 21 June 1971 when the conversation with his mother is alleged to have taken place.
I have set out the foregoing facts at some length as in my opinion they underscore the importance of the availability of contemporaneous records where there are allegations of the nature made in this case. In so far as the plaintiff’s case against Dr Magill is concerned, the most important events and date both from the point of view of the plaintiff and of Dr Magill is that of the visit which it is alleged she made after the plaintiff’s discharge from hospital. It was originally claimed that this visit was made on 28 June 1971, but that has now been amended to 21 June, although the plaintiff and his parents must be aware that the hospital records purport to show that he was admitted to hospital on 24 June 1971. The availability of the notebooks to which Dr Magill has referred would be of vital importance to her on the question as to whether or not there was any such visit either on 21 June or 28 June, being a time which is now 19 years ago.
The motions brought by Dr Magill and the hospital and the Board of Governors and Directors were heard by Lynch J. By a reserved judgment delivered on 13 January 1989 he refused the relief sought by them. As the Chief Justice has pointed out in his judgment in the application of Dr Magill, Lynch J refused the relief sought by Dr Magill largely because she had not shown that she had made efforts to make enquiries for records from her successor in her practice, or from the principals for whom she acted as locum; because of the letters of 2 July 1971 from Dr Rees hereinbefore referred to, and to which she had not referred in her affidavits, and because she had not made enquiries from Harcourt Street Hospital as to what records they might have which would be relevant to her defence of the action.
In the judgment which he has just delivered the Chief Justice, having reconsidered the question as to whether the court has inherent jurisdiction in the interest of justice to dismiss by reason of delay an action commenced within a time limit fixed by the Oireachtas, and the principles laid down in the majority judgment in O’Domhnaill v Merrick, which was applied in the unanimous judgment of this Court delivered by the Chief Justice on 27 November 1987 in the previous appeals in this case, adheres to the view he expressed in that judgment ie that the court has such an inherent jurisdiction. I am in complete agreement with that conclusion and with his reasons for so holding, and also with his application to these appeals of the principles laid down in O’Domhnaill’s case and in the previous appeal in this case.
The Chief Justice has also referred to the circumstances in which an application was made to the court to submit a further affidavit on behalf of Dr Magill on the hearing of this appeal, and the ruling of the court that further evidence should be adduced by both sides. On that matter, I should like to add just a few words. O. 58, r. 8 of the Rules of the Superior Courts gives to this Court full discretionary power to receive further evidence (inter alia, by affidavit) upon questions of fact, and that such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order. When counsel for Dr Magill submitted that the affidavit should be received under O. 58 the court reserved its ruling on that question until it should consider it at the luncheon interval. Having done so, the court ruled, without dissent, that the order of Lynch J was an interlocutory order and that the affidavit should be received. That affidavit set out in detail the exahustive enquiries made by her in relation to records which might exist in relation to her practice at the relevant times. I agree with the Chief Justice that, in principle, she is in no different position than was Dr Culhane in whose favour an order was made in the High Court and in this Court in the previous applications, and that taking all circumstances into account the balance of justice is in favour of dismissing the plaintiff’s claim against her, and that the order of the High Court should be reversed.
With regard to the appeal of the hospital, and its Board of Governors and Directors, I agree with the Chief Justice that, for the reasons he has given in his judgment, Lynch J was correct in the conclusions at which he arrived in their appeals, and that the appeals should accordingly be dismissed.
McCARTHY J:
This is an unhappy story. The plaintiff is now aged 29; he suffers, it is said, from a grave medical disorder — he is sterile, is on risk of testicular cancer unless an undescended testicle is removed and, if it is removed he will require hormone injections for the remainder of his life. He commenced legal proceedings on 1 October 1984, such proceedings based upon an allegation of negligence and breach of contract in respect of the events at his birth in June 1961 and of subsequent treatment ten years later. As of today, his action stands dismissed as against those allegedly responsible for the events of June 1961 and is in abeyance because of this appeal as against the remaining defendants, who are the appellants before this Court.
Before reviewing the facts and the several allegations made, it is proper to identify certain salient and unchallenged features:
1. No blame can be attributed to the plaintiff for the nature of the condition of which he complains.
2. No blame can be attributed to the plaintiff for any part of the delay.
3. No blame can be attributed to any of the defendants for any part of the delay.
4. If either or both of the appeals succeed, then so far as the claim against that defendant or defendants is concerned, the plaintiff will have lost his case without a hearing on the merits.
5. If either appeal be dismissed, the case will be heard on the merits against that defendant or defendants.
6. The defendants are insured against their financial liability, if any, to the plaintiff.
7. The defendants are not insured and could not be insured against the damage to professional reputation consequent upon failing to defeat the plaintiff’s claim.
The Facts
The plaintiff was born in the Coombe Hospital on 28 June 1961. He was born with an undescended right testicle. This condition was not in fact detected by the staff in the Coombe Hospital either on the occasion of his birth or on a return visit some three months later with a complaint of vomiting and consequently no treatment was given to the plaintiff in respect of the undescended right testicle nor any warning to the plaintiff’s parents to watch carefully to see if the right testicle would descend during the following two or three years and if not to seek further medical advice …. The plaintiff attended a private Montessori School as an infant and did not therefore have the benefit of the medical examinations carried out by Department of Health doctors on children attending national schools. The first time the plaintiff’s genital area was examined by a medical doctor was in June 1971 when the plaintiff was one or two weeks short of ten years of age. In that month the plaintiff developed mumps. He was referred at once to Harcourt Street Children’s Hospital and was there detained for some days, during which time he was examined. He further alleges that in October 1977 he was seen by the eighth defendant, Dr Magill in respect of a sprained ankle and that inquiry was made as to the danger of any adverse consequences from the illness in 1971.
The Legal Proceedings
A plenary summons was issued in the High Court on 1 October 1984 against eight defendants being:
1. Niall Duignan,
2. The Board of Guardians and Directors of the Coombe Lying-in Hospital,
3. Kevin Feeney, former Master of the Coombe Hospital,
4. Naomi Kidney, personal representative of William Kidney, paediatrician,
5. Marie Culhane, general practitioner,
6. Tom McManus, Chairman of Harcourt Street Children’s Hospital, present appellant,
7. Harcourt Street Children’s Hospital, present appellant,
8. Margaret Magill, general practitioner, present appellant.
The claim outlined was for damages for negligence or in the alternative for breach of contract. The statement of claim was delivered on 16 January 1986. It alleged that owing to the negligence and breach of contract of the first, second and third defendants and of William Kidney deceased, the plaintiff’s parents were not notified at the time of his birth of the existence of the undescended testicle. The allegation against the other four defendants, the present appellants, was that owing to their negligence in and about the treatment of the plaintiff and their failure to inform the plaintiff’s parents that an after effect of mumps can be orchitis, the plaintiff’s left testis became atrophic.
Notices of motion
(a) The first and second defendants, by notice of motion dated 4 November 1985, and the third, fourth and fifth defendants by notice of motion dated 27 February 1986 applied to the High Court for an order that the proceedings as against them be struck out. This motion was determined on 10 July 1986, by which time the third named defendant had died. It was ordered that the proceedings against the first, second, fourth and fifth named defendants be struck out. The plaintiff appealed against this order of the High Court and by order of this Court on 27 November 1987 the appeal was dismissed. The plaintiff had been represented by counsel in the High Court but conducted the appeal in person. I will, later, advert to the judgments of both Keane J and of the Chief Justice on the hearing of these motions.
(b) A joint defence on behalf of the chairman of the board and the Board of Governors and Directors of Harcourt Street Children’s Hospital was delivered on 13 January 1989. It traversed all the allegations in the statement of claim, pleaded a statute bar and, further, in the alternative, ‘the plaintiff has so delayed in the prosecution of the claim herein and such a period of time has elapsed since the matters complained of against these defendants that these defendants are unable to properly or adequately defend these proceedings and it would be inequitable and unjust to allow the plaintiff’s claim against these defendants to proceed and in the premise the plaintiff’s claim should be struck out and/or dismissed.’
(c) A defence was filed on behalf of Dr Magill on 10 October 1988. It traversed a number of the allegations in the statement of claim and, so far as here relevant, pleaded that the claim was statute barred and alternatively, ‘the said claim has now been brought after such lapse of time and delay that the ends of justice cannot be attained by a prosecution of this claim and evidence in support of this defendant’s case has been lost and/or diminished thereby.’
(d) On 18 November 1988, the hospital defendants served notice of motion for 5 December 1988 ‘for an order dismissing the plaintiff’s claim against [them] for want of prosecution the plaintiff having delayed in the prosecution of his claim herein or further or in the alternative an order dismissing the claim against [them] in that due to the passage of time the said defendants would be unable to properly or adequately defend the proceedings herein. The continuation of the proceedings herein would be contrary to natural justice and an abuse of the process of the courts ….’
(e) On 20 October 1988, the defendant, Dr Magill, served a notice of motion for 7 November 1988 seeking an order dismissing the proceedings on the grounds that the claim was statute barred or ‘(2) the said claim has been brought after such lapse of time and delay that the ends of justice cannot be attained by a prosecution of this claim, and evidence in support of this defendant’s case has been lost and/or diminished thereby.’ This application was grounded upon the affidavit of Dr Magill stating that she had ceased practising in the Dun Laoghaire area since February 1978 before which she had
a small general medical services practice with a very small number of private patients. I was primarily employed by working for a number of doctors as their locum. I say that on ceasing practice on my own account in 1978, I transferred my patients’ record cards to the doctor who took over my practice for me …. I was primarily employed as a locum doctor for other doctors in the locality with whom I had a written contract. This contract provided that I would act as locum for 40 weekends in each year. This arrangement continued during the period 1967 to 1978. The contract further provided that on each Monday, following the weekend during which I had attended patients in my capacity as locum as aforesaid I should report to each of the doctors employing me as to the attendances of each of their patients during that weekend and the said doctors would thereupon enter the particulars of my attendances into their own patient records. I myself did not retain records of these visits. I did, however, keep notes of the ‘phone calls I received requesting patient calls and the names of the doctors on whose behalf I attended these patients. Only one of these notebooks now remains in my possession and although I have examined it no record of an attendance on the plaintiff appears therein.
8. I say and believe that I have no recollection whatsoever of treating the plaintiff or advising him or his parents in respect of such treatments either around the time of his birth in 1961 which was prior to the commencement of my practice in Dun Laoghaire in January 1967 or in or around the month of June 1971 when he alleges he contracted mumps and was attended by Dr Marie Culhane, the fifth named defendant. I say that to the best of knowledge and belief I have never acted as locum for Dr Culhane or any of the other defendants to these proceedings. I can recall that I attended the plaintiff on a few occasions between 1967 and 1978 in the course of my locum duties when I would have been doing duty for a doctor who was on call for Dr Culhane. On these occasions the plaintiff was suffering from febrile illnesses. I do not have in my possession any notes or records which might be of assistance in ascertaining what treatment or advices were or were not given on such occasions, but I am satisfied that if I had attended him for mumps I would have referred him immediately back to the doctor for whom I was on call at the time. I am also quite satisfied that I did not attend him before he attained the age of six years.
9. I am advised by counsel and by my solicitors that in the circumstances, above outlined, there has been inordinate delay in initiating and prosecuting these proceedings, and further say and believe that the memories of witnesses in relation to facts would have been necessarily impaired, consequently reducing the chance of achieving a just result in this case; that the doctor for whom I acted as locum (if this is indeed the case) is probably untraceable, and consequently the medical records are untraceable and am further advised and believe that my legal and expert medical advisers cannot adequately and properly prepare my defence in the claim herein.
In a further affidavit Dr Magill said that she has no recollection of attending or treating the plaintiff in June 1971 and has no recollection of receiving any record or communication from Harcourt Street Children’s Hospital or of any conversations with the plaintiff’s mother in June 1971 or October 1977 although she does recollect seeing the plaintiff in connection with an ankle injury incident of October 1977. It is convenient, at this stage, to quote portion of the judgment of Lynch J where he said:
while the eighth defendant’s [Dr Magill] recollection may be very limited she has not suggested that she has made any efforts whatsoever to inquire from her successor in her own medical practice or from her principals in relation to her practice as locum for other doctors as to what records they may have by reference to which she might refresh her memory relevant to the matters in issue in this case. I cannot overlook the fact that the sixth and seventh defendants [the hospital] have exhibited records which include a copy letter dated 2 July 1971 from Dr Rees of Harcourt Street Children’s Hospital to the eighth defendant enclosing a copy letter of the same date to Dr M. Culhane [the fifth defendant] giving details of the plaintiff’s condition on admission to hospital and thereafter whilst in hospital and his treatment while in hospital. The eighth defendant made no reference whatever to these letters in her affidavits and it was quite obvious that she made no inquiry whatsoever from Harcourt Street Children’s Hospital as to what if any records they might have which would be relevant to her defence of this action. I am not at all satisfied that the eighth defendant will be unable adequately to defend this case or that she is in any significantly worse position now so far as defending the case is concerned than she would have been had the action commenced 10 or 12 years ago.
(f) Both motions were dismissed in the High Court and these defendants and the plaintiff were ordered to make discovery of documents. Such discovery has been made. These defendants have appealed against the refusal of Lynch J to dismiss the action.
At the commencement of the argument on behalf of Dr Magill, her counsel applied under O. 58, r. 8 of the Rules of the Superior Courts for leave to file a further affidavit by Dr Magill, this affidavit dealing with inquiries made by her or on her behalf since the decision in the High Court. Her counsel referred to Wylie’s Judicature Acts at p. 795 and the case of In re Page, Hill v Fladgate [1910] 1 Ch 489 in support of the contention that the appeal was from an interlocutory judgment within the meaning of rule 8. On inquiry, the plaintiff made no objection and the court ruled that the judgment of the High Court should be treated as interlocutory under the rule. In somewhat similar circumstances, in Dowd v Kerry County Council [1970] IR 27 this Court directed that an affidavit detailing inquiries carried out after the hearing of a motion in the High Court should be received on the hearing of the appeal. The report of the case does not suggest that there was any opposition to the admission of the affidavit. I reserve for another occasion, after full debate, the question as to whether or not evidence as to information obtained after judgment in the High Court is to be received in this Court on appeal from such judgment, when such evidence might readily have been obtained before the hearing in the High Court. In Dowd’s case, the inquiries made by the plaintiff’s solicitors were consequent upon the information provided in the affidavit of one of the defendants; such information was in this case available before the hearing in the High Court. It is undesirable in principle and unfair to the judge of the High Court that parties should be permitted to adduce further evidence in respect of matters when such evidence could readily have been obtained for presentation in the High Court. Subject to the comment made by the Chief Justice in respect of the letter sent by Dr Rees, with which I agree, it is clear that there is no extant record that would help this defendant in defending the claim. She has therefore met the criticism of Lynch J which I have cited. Lynch J did not advert nor was his attention drawn to the fact that the copy letter addressed to the eighth defendant was sent to the address of Dr Culhane.
As stated by the Chief Justice in his judgment the real cause of action by the plaintiff against this defendant is an allegation that in conversation with his mother on two occasions (1971 and 1977) when the question was specifically raised, she, this defendant, failed to give adequate explanation or advice concerning what she should have diagnosed as a problem arising from an undescended testicle.
In her further affidavit, Dr Magill, in this context, says:
I further say and believe that if these proceedings had been commenced, or if an indication had been given to me that proceedings were contemplated, or even if a complaint of any nature was made concerning these events, at any time before I ceased practice in 1978, I would then probably have had a recollection of whatever events took place in June 1971, and more importantly some recollection of conversation with the plaintiff’s mother. Assuming the visits alleged by the plaintiff/respondent took place, in all likelihood some record then existed or such (sic). At the very least my visit book would have been available at this time.
It was no fault of the plaintiff, or of anyone else, that the proceedings had not been commenced before 1984, when the plaintiff first learnt of his condition. Dr Magill does not suggest that she would record the content of a conversation; in any event, the complaint is not of what she is alleged to have said but of her alleged failure to give explanation or advice.
The Law
In Sheehan v Amond [1982] IR 235 nine years after the delivery of the defence in a traffic accident case, the defendant moved to dismiss for want of prosecution. In his judgment (with which Griffin and Hederman JJ agreed) Henchy J said (at 239):
Not one word of evidence was tendered in the High Court by, or on behalf of, the plaintiff’s solicitor to explain, justify or even make understandable the manner in which he had allowed the plaintiff’s 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 ( ie , that of the plaintiff’s 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 . (emphasis added)
The dismissal of the case was because of want of prosecution.
In O’Domhnaill v Merrick [1984] IR 151 where the court was concerned with both an application for extension of time for delivery of statement of claim and a motion for dismissal for want of prosecution, a traffic accident had occurred in March 1961 when the plaintiff was three years old. Proceedings were commenced in March 1965 against the owner of the relevant vehicle and in 1968 dismissed for want of prosecution; in September 1977 she commenced an action against the driver of the vehicle and took no further step until May 1982 when the Master of the High Court made an order extending the period for delivery of a statement of claim. The defendant appealed to the High Court bringing a motion for dismissal for want of prosecution. The latter application succeeded and that order was upheld by this Court (Henchy and Griffin JJ, McCarthy, J dissenting). In his judgment, with which Griffin J agreed, Henchy J (at 158–9) said:
As to a plaintiff’s right to proceed with an action brought before the period of limitation has run out, the courts in the past have been reluctant to exercise their equitable jurisdiction to terminate stale claims at a time when the statutory period of limitation has yet to expire. However, the Statute of Limitations 1957, was enacted in a legal milieu which makes such reluctance to intervene inappropriate. Apart from implied constitutional principles of basic fairness of procedures, which may be invoked to justify the termination of a claim which places an inexcusable and unfair burden on the person sued, one must assume that the statute was enacted (there being no indication in it of a contrary intention) subject to the postulate that it would be construed and applied in consonance with the State’s obligations under international law, including any relevant treaty obligations.
He then went on to refer to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms but did not express a concluded opinion on the point, as the point had not been argued. He did not identify any judicial precedent supporting the ‘equitable jurisdiction to terminate stale claims’; no such case was referred to in argument although the speech of Lord Scarman in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1984] 2 All ER 358 would appear to support the contrary view.
The significant features of both O’Domhnaill’s case and Sheehan’s case, so far as relevant here, are that they were traffic accident cases, proceedings had been commenced but had not been prosecuted with due diligence, and the plaintiff, either personally or vicariously or both, was guilty of gross and culpable delay. None of these factors apply here.
The judgment of Keane J on 10 July 1986 in determining the motions brought by the first to fifth defendants, was ex-tempore but it was clearly based upon the judgment of Henchy J in O’Domhnaill’s case. Keane J identified the question remaining as to whether there is a denial of justice after delay whether that delay is excusable or not. He concluded that it does not seem to be an essential part that in addition to inordinate delay it must also be inexcusable. He does not expressly advert to the fact that the conclusion of Henchy J ([1984] IR 151 at 159) that the lapse of 24 years between the cause of action and the hearing of the complaint was so patently and grossly unfair to the defendant, was accom panied by the observation that it was a delay which was virtually entirely the fault of the plaintiff or her advisers and added that he reached that conclusion ‘in the knowledge that it is not being submitted on behalf of the plaintiff that it would not be possible for her to take an alternative course to this action for the purpose of recovering damages or compensation,’ — clearly an allusion to a possible action for negligence against the solicitors. See the reference in my judgment at 167.
This plaintiff appealed from the order of Keane J and the judgment of this Court (Finlay CJ, Henchy and Hederman JJ) was delivered by the Chief Justice [1991] ILRM 135. He said (at p. 139):
It is unnecessary for me to repeat here the principles laid down by this Court in that case [O’Domhnaill] but they may be summarized in their application to the present appeal as being that where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the acts complained of and the trial, then if that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action.
The plaintiff conducted that appeal in person; I do not know if there was any argument or submission made in respect of the extent of application of the decision in O’Domhnaill’s case.
On the hearing of the instant appeal, the plaintiff did refer to pp. 157–8 of the report of O’Domhnaill’s case where Henchy J said:
There was at least an onus on her to show that she took such steps to prosecute her claim as could reasonably be expected from a person of her age, or, failing such steps, to give an explanation of her inactivity. Unfortunately, no explanation has been given by or on behalf of the plaintiff for the failure to prosecute her claim with reasonable expedition, either during the past six years since the present proceedings were instituted or during the earlier period.
After due regard to all relevant factors, I am driven to the conclusion that not only was the delay in this case inordinate and inexcusable but there are no countervailing circumstances which would justify a disregard of that delay. I consider that it would be contrary to natural justice and an abuse of the process of the courts if the defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial, and a claim for damages of which she first learned 16 years after the accident. Apart from the personal unfairness that such a trial would thrust on the defendant, I consider that a trial after such a remove in time from the cause of action would be essentially unfair for being incompatible with the contingencies which insurers of motor vehicles could reasonably be expected to provide against.
I note, in passing, the relevance of insurance in a claim for damages for personal injuries.
In his judgment just delivered, the Chief Justice expresses the view that to conclude otherwise than that the court has got inherent jurisdiction to dismiss a claim such as this, ‘is to give to the Oireachtas a supremacy over the courts which is inconsistent with the Constitution.’ Since this argument touching upon the doctrine of separation of powers was not put forward by either appellant and, a fortiori, was not argued by the plaintiff in person, I express no view upon it.
Conclusion
Clearly, the weight of judicial opinion as to the jurisdiction of the court to dismiss an action, brought and maintained within the statutory limitation period, such jurisdiction founded upon constitutional principles of fairness, is against the view that I expressed in O’Domhnaill’s case and subject to any future review by the full Court (see Henchy J in Hamilton v Hamilton [1982] IR 466 at 484), I must accept that the court has the jurisdiction that founded the order in O’Domhnaill’s case. I do not, however, accept that, without the culpable delay that existed in O’Domhnaill’s case, such jurisdiction may be exercised so as to dismiss the claim of a non-culpable plaintiff.
I am not satisfied that that issue has been argued. In any event, although it may be that I will be bound by a different view, I find it impossible to accept that justice requires of the courts that an injured plaintiff, innocent of any responsibility for delay, and unaware of the existence of his cause of action at least in part because of the very failure in communication of which he complains in the substantive action itself, should lose his case without a trial on the merits because the doctor whom he sues is less adequately equipped to defend the case because she has lost or destroyed contemporaneous records which may or may not be relevant to the case itself. In short, the very negligence alleged is, itself, a direct cause of the delay because of which, it is said, the plaintiff is to lose his case. It is a variation of Joseph Heller’s ‘Catch 22’. It follows that, for my part, the appeal of the eighth defendant should be dismissed.
As to the appeals by the sixth and seventh defendants, I respectfully adopt the factual summary set out in the judgment of the Chief Justice and the conclusion to which he comes.
Anglo Irish Beef Processors Ltd v Montgomery
, unreported, Supreme Court, July 31, 2002
[Judgments delivered by Keane C.J. and Fennelly J.; Murphy J. agreed with Keane C.J..]
JUDGMENT delivered the 31st day of July 2002, by Keane C.J.
1. This is an appeal from a judgment and order of the High Court (Kelly J) in which he refused two applications on behalf of the first and second named defendants and third and fourth named defendants respectively for orders dismissing the plaintiff’s claim on the ground of inordinate and inexcusable delay in the prosecution of the claim against all four defendants.
2. The factual background to the case is as follows. On the 14th June 1989, the first named plaintiffs (hereafter “Anglo Irish”) agreed to purchase from the four defendants their share holding in the second named plaintiff (hereafter “DJS”) for the sum of £1. Clause 8 of the hand-written agreement provided that
“An audit of DJS shall be carried out by N. Cooke of SKC as at the 13th June 1989. The balance sheet shall be prepared on the same basis as the BS in Schedule 2. If the net assets/liabilities which is IR£2,040,468 in the pro forma in Schedule 2 as at the 13/06/89 exceeds IR£2,540,468 then the excess shall be paid to DJS by the shareholders within 10 days of being called upon to do so. The liability to do this shall be joint and several.”
3. Anglo Irish maintain that the balance sheet as ultimately prepared showed net liabilities which were £1,584,857 in excess of the agreed amount of £2,540,468. The defendants say that clause 8 does not, in its terms, reflect the agreement of the parties and that the indemnity intended to be provided for by clause 8 was confined to certain trading losses.
4. The proceedings began by way of summary summons on the 28th November 1989. The defendants having resisted a motion for final judgment on the ground that the terms of clause 8 did not represent the actual agreement entered into between the parties, the matter was sent for plenary hearing. In an amended statement of claim delivered on the 10th March, 1993, Anglo Irish advanced an additional claim, namely, that they had also suffered loss and damage arising from alleged breach of warranties on the part of the defendants. This related to export refund provisions and PAYE provisions. By a letter of 15th March 2001, the defendants were informed that by virtue of a settlement entered into by DJS with the Department of Agriculture in November 1995, the claim in respect of PAYE provisions was being abandoned and that the claim under the heading of Export Refund Provisions had been reduced to the sum of £666,298.39.
5. The defence delivered on behalf of the defendants in the agreement included a counterclaim for rectification of the written agreement of 14th June 1989. The defendants also issued and served with the leave of the court third party proceedings against the third party (hereafter “SKC”) claiming damages for negligence, breach of contract and breach of trust while acting as their accountants and financial advisors in relation to the disposal of their share holding in DJS. The pleadings in the main action were not closed until the 7th April 1994. Thereafter, Anglo Irish took no further steps until the 2nd April 1996 when a notice of intention to proceed was served. Again, however, the action remained dormant until a further notice of intention to proceed was served on 2nd October 1998. Anglo Irish again took no further steps until the 13th December 2000 when a third notice of intention to proceed was served. On the 30th March 2001 Anglo Irish served a notice of motion seeking leave to amend their reply in defence to the counterclaim. Shortly thereafter, the present motions to dismiss the plaintiffs claim were served on behalf of the defendants.
6. In an extempore judgment, Kelly J refused to grant the reliefs sought. While he was satisfied that the delay was indeed inordinate and inexcusable, he was also of the view that, applying the principles laid down by this court in Primor Plc -v- Stokes Kennedy Crowley [1996] 2IR 459, the balance of justice was in favour of allowing the action to proceed. From that judgment and order, the defendants have now appealed to this court. There has been no cross appeal by Anglo Irish in respect of the finding by the learned High Court judge that there was inordinate and inexcusable delay in the prosecution of the claim.
7. It is not in dispute that the negotiations which led to the agreement of the 14th June 1989 were conducted on behalf of the defendants with the plaintiffs by Declan Collins of SKC. It is also not in dispute that the defendants were assisted by Brendan Devine, formerly a partner in Ernst and Whinny, the auditors to the defendants and to which firm Mr. Devine was a consultant. While Mr. Devine did not have any direct dealings with the plaintiffs, he took part in a number of discussions between the defendants on the one hand and Mr. Collins on the other hand, including one that took place on the afternoon of the 13th June 1989, i.e., the day before the signing of the agreement.
8. In an affidavit sworn in these proceedings, Mr. Thomas Butler, a director of the third and fourth defendants, deposed that during the course of that discussion, Mr. Collins made it clear that the indemnity to be provided by clause 8 related to trading losses to be computed by reference to accounts prepared on the same basis as previous years, that he had examined the management accounts for DJS and that the trading losses disclosed were in the order of £400,000. Mr. Butler deposed that it was on the basis of this representation that the selling shareholders felt it acceptable to underwrite trading losses in excess of £500,000.
9. Mr. Devine died on the 10th November 2000. While Mr. Butler accepted that there were other persons present, including the first and second named defendants and himself, he said that the significance of Mr. Devine’s evidence would have been that, like Mr. Collins, he was a chartered accountant and, accordingly, his evidence as to what was said by Mr. Collins on the issue of trading losses and in relation to the accounts of DJS would have been particularly important. Those factual averments, although not the legal significance to be attached to them, were not contested on behalf of Anglo Irish.
10. In the course of his extempore judgment, the learned High Court judge concluded that the crucial factor, so far as the role of Mr. Devine was concerned, was that he had no face to face dealings with Anglo Irish or their representatives: those negotiations were solely carried on by Mr. Collins who, although retired, would be available as a witness. He accordingly concluded that, on balance, the absence of Mr. Devine would not imperil a fair trial. At that stage of his judgment, the learned trial judge does not appear to have adverted to the fact that, in the light of the averments of Mr. Butler, Mr. Devine’s evidence would have been of considerable significance in relation to the claim against the third party.
11. It is acknowledged in this case that the applicable legal principles are as set out in the judgment of Hamilton CJ in Primor Plc -v- Stokes Kennedy Crowley [1996] 2IR 463 at p. 475 as follows:-
“(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on a 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;
(e) 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.”
12. Since the delay in this case is acknowledged to have been both inordinate and inexcusable, one can proceed at once to consider whether, in accordance with those principles, the balance of justice is in favour of or against permitting the action to proceed.
13. The trial judge was undoubtedly entitled to take into account in favour of Anglo Irish the fact that they had asserted their claim against the defendants at an early stage, and that the defendants were aware of the claim that was being made against them. In addition, to some extent at least, the case was one based on documents, i.e., the true construction of the agreement of 14th June 1989. As against that, there is the remarkable fact, that, although Anglo Irish are acknowledged to be a wealthy trading corporation with access to first class professional advice, no explanation whatever was given for the quite staggering lethargy with which these proceedings were pursued. Nor can it be said that the defendants in any way acquiesced in the inaction of Anglo Irish.
14. If those were the only factors to be considered, they would, suggest, in my view, that, contrary to what the learned High Court concluded, the balance of justice was in favour of striking out the proceedings. There is, however, another factor to which, in my view, the trial judge, although conscious of it, unarguably gave insufficient weight, i.e., the fact that Mr. Devine is now dead and will be unable to confirm the defendants’ understanding of the advice being tendered to them by Mr. Collins as to the nature and effect of clause 8 of the agreement.
15. That evidence was critical to the defendant in maintaining their claim for an indemnity or contribution from the third party. Since, in accordance with the requirements of the Civil Liability Act 1961 and the relevant provisions of the Rules of the Superior Courts, all these issues would be tried together, it follows inevitably that, in relation to an issue of central importance, i.e., whether, assuming the claim of Anglo Irish is well founded, the defendants are entitled to contribution or an indemnity from the third party, the defendants will be deprived of a witness of critical importance as a result of the inordinate and inexcusable delay on the part of Anglo Irish in prosecuting the claim.
16. I am satisfied that, in the result, applying the principles laid down by the learned Chief Justice in Primor Plc, the delay in this case has given rise to a substantial risk that it is not possible to have a fair trial and that it has caused serious prejudice to the defendants. I am further satisfied that that was the only inference which could have been drawn by the High Court from the evidence before him on affidavit, and that, accordingly, the conclusion of the learned High Court judge that the balance of justice required the action to proceed was erroneous in point of law.
17. I would allow the appeal and substitute for the order of the High Court an order dismissing the claim as against all four defendants.
THE SUPREME COURT
Keane C.J.
Murphy J.
Fennelly J.
344 & 345/01
BETWEEN
ANGLO IRISH BEEF PROCESSORS LIMITED AND DJS MEATS LIMITED
Plaintiffs/Respondents
and
DEREK MONTGOMERY, SEAMUS HAND,
NATIONAL COLD STORAGE LIMITED, NORDIC COLD STORAGE LIMITED
Defendants/Appellants
AND
STOKES KENNEDY CROWLEY AND COMPANY (A FIRM)
Third Party
JUDGMENT delivered the 31st day of July, 2002 by FENNELLY J.
18. I fully agree that this appeal should be allowed and that the plaintiff’s claim should be dismissed for want of prosecution. I also agree both with the account of the facts given in the judgment of the Chief Justice and with his reasons, save that, at least in one respect I would go somewhat further.
19. The remarkable aspect of the history of the delay by the respondents in the prosecution of their claim is not merely that it was inordinate and inexcusable. This is a matter which is not now contested and was never seriously open to dispute. It is rather that the respondents have made no serious attempt to explain the delay.
20. The cause of action flowed from the terms of an agreement of 14th June 1989 for the sale of the appellants’ shareholding in the second named respondent (“the company”). The respondents as from the autumn of 1989 believed that they had a claim for £1,584,857 based on a revised audit of the liabilities of the company, said to have been duly carried out, on their behalf, in accordance with the terms of the contract.
21. The respondents promptly demanded payment of that sum on 2nd November 1989. They issued the Summary Summons on 28th November 1989. Following a notably expeditious processing of the action in the Master’s court, the case was adjourned for plenary hearing. The pleadings were closed around the end of 1990.
More than three further years were taken up with the joining of the third party, amendments of pleadings and the making of requests for particulars and replies and the process of discovery. During this period also, the respondents introduced a separate heading of claim by an amendment made on 10th March 1993. This arose from a claim by the Minister for Agriculture for repayment by the company of a sum of over £1 million in respect of export refunds paid to the company related to the export of beef to certain African countries (“the export refund dispute”). As is stated in the judgment of the Chief Justice, the pleadings in the main action were closed on 7th June 1994. No real controversy attaches to these events. It is not the period of the relevant delay.
22. The Chief Justice has referred to the complete absence of any explanation for the “quite staggering lethargy with which these proceedings have been pursued.” That remark applies to the period after the middle of 1994. In the period of six and a half years from 7th June 1994 to 13th December 2000, the only action taken by the respondents in this action were:
on the second April 1996, they served Notice of Intention to Proceed and notice of change of solicitor, the latter being necessitated by a merger of the firm of solicitors on record with another firm;
on 2nd October 1998, they served a second Notice of Intention to Proceed;
on 13th December 2000, the served a third Notice of Intention to Proceed.
23. The learned trial judge correctly rejected the submission of the respondent that either a Notice of Intention to Proceed or a notice of change of solicitor constituted a proceeding for the purposes of the Rules of the Superior Courts. He followed the decision of the Northern Ireland High Court in Bannon v Craigavon Development Commission [1984] N.I. 387. Put simply, the respondents allowed a period of six and a half years to run without taking any action at all except to say, twice, that they intended to proceed but without doing so. The respondent submitted that the delay during this time was “partly explained” by the existence of the export refund dispute. This litigation between the company and the Minister for Agriculture was settled on 14th November 1995. Insofar as this litigation is proffered as an explanation for the delay, it is noteworthy that the respondent did not notify the appellants of the fact of the compromise until they sent a letter about it on 15th March 2001. Nonetheless, there is arguably some explanation for the delay to 14th November 1995.
24. The only other item mentioned as a possible explanation for delay was “the difficulties in obtaining full discovery in these proceedings.” In support of this contention, the respondent said that affidavits of discovery were sworn by the Third Party on 6th April 1992 and 4th January 1993, but that “these were inadequate which necessitated correspondence with A & L Goodbody, Solicitors for the Third Party.” The “correspondence,” as appears from the respondents’ affidavit sworn in the motion in this case, consists of a single letter of complaint from the respondents’ solicitors to A & L Goodbody dated 12th October 1998 and an acknowledgment from the latter. Thus a letter was written more than seven years after the provision of the supposed inadequate discovery with no ensuing action to pursue the complaint. The letter was not even written to the appellants’ solicitors.
25. It is no exaggeration, in these circumstances to say that the respondents have not even made pretense of an attempt to explain, still less offered an excuse for their quite extraordinary delay in pursuing the claim. There may, of course, be cases where the unpredictable hazards of life afflict the course of litigation. Individuals may be handicapped by poverty, illness, ignorance or absence from the jurisdiction. Documents may be mislaid, lost or destroyed. Poor or inadequate legal advice or service may, through no fault of the litigant, impede the progress of a claim. No comparable misfortune has been advanced in the present case. The claim is of a purely commercial character. On the respondents’ own version of it, it is perfectly straightforward. The claimant is a well-advised, well-known company and is fully armed with all the means of pursuing its claim to judgment. Its stark failure to proffer even the vestige of an explanation for its delay is a circumstance which should not be overlooked. It looks like mute, not to say insolent, indifference, when a litigant, positioned as the respondents are in this case, evince no consciousness of the need to explain their long and egregious periods of silence. The courts are entitled to expect something more from parties who crave its indulgence.
26. The judgment of Hamilton C.J. in Primor plc v Stokes Kennedy Crowley [1996] I.R. 459 sums up the elements that are necessary to enable the courts to dispose of motions of the present type. The important passage cited by the Chief Justice distills the essence of the extensive case-law summarised and reviewed in the preceding part of the judgment. The governing consideration is that first stated by Hamilton C.J., namely 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.” It is always necessary for the defendant applicant to demonstrate, and he bears that burden, that the plaintiff has been guilty of inordinate and inexcusable delay. Subject to that, however, the court should aim at a global appreciation of the interests of justice and should balance all the considerations as they emerge from the conduct of and the interests of all the parties to the litigation. The separate considerations mentioned by Hamilton C.J. should not be treated as distinct cumulative tests but as related matters affecting the central decision as to what is just. In particular, as was said by O’Dalaigh C.J. In Dowd v Kerry County Council [1970] I.R. 27 at p 41: “Litigation is a two party operation and the conduct of both parties should be looked at.”
27. One of the authorities cited by Hamilton C.J. was O’Domhnaill v Merrick [1984] I.R. 151, where Henchy J said:
“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 the inability on the part of an infant plaintiff to control or terminate the delay of his or her agent.” (emphasis added).
28. That statement of the law indicates that the author of delay which is found to be both inordinate and inexcusable will not be absolved of fault unless he can point to countervailing circumstances. If he can, the court may be able to treat him more favourably when it comes to assess the third consideration in the cited passage from the judgment of Hamilton C.J., namely whether “on the facts the balance of justice is in favour of or against the proceeding of the case.” As I have already suggested, the respondents were unable to point to any disadvantage or disability affecting them. Nor was there any delay or acquiescence of the appellants, which might redress the balance of fault.
29. In such circumstances, when the courts comes to strike that “balance of justice” in application of the comprehensive list of considerations set out in the judgment of Hamilton C.J., it will need to find something weighty to cancel out the effects of the respondents’ behaviour. It will attach weight to the character of the claim and to the character of the respondents. When considering any allegation of delay or acquiescence by the appellants, it will be careful to distinguish between any culpable delay in taking any step in the action and mere failure to apply to have the respondents’ claim dismissed.
30. O’Dálaigh C.J. Said in Dowd v. Kerry County Council at p. 41:
“… in weighing the extent of one party’s delay, the Court should not leave out of account the inactivity of the other party. The rules of court provide for actions being struck out for want of prosecution … the adage about sleeping dogs may be wise, but it is not specifically conceived to advance the cause of justice. In some instances, it is acted upon by a defendant in the hope that he will ‘get by’ without having to face the peril of being decreed. Litigation is a two party operation and the conduct of both parties should be looked at.”
31. In my view, the defendant should not be lightly blamed for delay which is the fault of the plaintiff. In order to be weighed in the balance against him, it would have to amount in the particular circumstances to something “akin to acquiescence” as indicated in the judgment of Henchy J cited above. The learned High Court judge stated that there had been no suggestion that the appellants had dragged their feet or that motions had to be brought to extract pleadings from them. He went on to express the view that it was “understandable” that the personal defendants “were content to let sleeping dogs lie rather than invite upon themselves litigation claiming damages which are now in excess of £2 million.” His conclusion was that this matter had to be taken into account but that he “attached only little weight to it.” This approach was, in my view, perfectly correct.
32. I agree with the Chief Justice’s analysis of the specific prejudice advanced by the appellants in this case, arising from the death of Mr Brendan Devine. I would add that, I agree with the conclusion of the High Court judge that the fourth-named defendant/appellant, a corporate body, suffered prejudice by reason of the fact that, initially, its auditors issued a disclaimer in respect of its financial statements which became, following a change in the applicable auditing standards, a note of “fundamental uncertainty,” all by reason of the delayed litigation. Furthermore, it has long been recognised that general prejudice arises from the natural remove of the time of trial from the contested events. The learned High Court judge accepted that the memories of witnesses as to the events of 1989 would be affected. Henchy J, in a further passage in O’Domhnaill v Merrick:
“While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial. For a variety of reasons, a trial in 1985 of a claim for damages for personal injuries sustained in a road accident in 1961 would be apt to give an unjust or wrong result, in terms of the issue of liability or the issue of damages, or both. Consequently, in my opinion, the defendant, who has not in any material or substantial way contributed to the delay, should be freed from the palpable unfairness of such a trial.”
33. Those remarks must, of course, be interpreted in the light of the case before the court. Each case must be judged on its own merits. In the present case, the dimming of memories must tend to favour the respondents. They rely on a written agreement. It is the appellants who need to rely on oral evidence to dispute its effect.
34. Finally, the courts will take into account, depending on the facts, the prejudice from what was described by Keane J, as he then was, in Southern Mineral Oil Ltd (in liquidation) v Cooney [1997] 3 I.R. 549 at 564, “suffered by particulars defendants in having the action hanging over their heads.”
35. In my view, the learned High Court judge, while correctly identifying these aspects of the case, did not attach sufficient weight to them. For that reason, I agree with the Chief Justice that the appeal should be allowed and that the action should be dismissed.
Robert McGregor and Sons (Ireland) Ltd v Mining Board
, unreported, Supreme Court, April 26, 2002
JUDGMENT delivered the 26th day of April, 2002 by Keane C.J. [Nem Diss.]
1. This is an appeal from a judgment and order of the High Court (Carroll J) on the 5th October 1998 staying the applicants’ application to the High Court. The court had on the 11th December 1995 ordered the following preliminary issue to be tried between the second, third and fourth named respondents and the applicants, i.e.,
“whether the plaintiff’s application to court pursuant to s.15(4) of the Mineral Development Act 1979 should be stayed by virtue of the alleged inordinate and inexcusable delay or alternatively the plaintiff’s application constitutes ( sic) an abuse of process by reason of the delay of the plaintiffs to institute these proceedings.”
2. The background to the case is as follows. The second named applicant (who has died since the proceedings were instituted) was a director and major shareholder in the first named applicant (hereafter “the company”). It was incorporated in October 1960 and acquired portions of land in Counties Laois, Carlow and Kilkenny with a view to drilling for minerals. It also acquired various easements, leases of land and/or mining rights over other properties and had also been granted mining rights in certain properties by the second named respondent (hereafter “the Minister”). The company began to engage in open cast mining, but it is not in dispute that, at the time of the enactment of the Minerals Development Act 1979 (hereafter “the 1979 Act”)) the company was not engaged in the exploitation of all the lands which it had either acquired or in respect of which it owned the mining rights.
3. The significance of these lands or other mining rights not being exploited by the company at the coming into force of that enactment is that, under Part II, the exclusive right of working minerals was vested in the Minister, unless on the 15th December 1978,
“a person was lawfully working or developing a mine of such minerals.”
4. It will be necessary at a later point to refer in more detail to the provisions of Part II: at this point, it is sufficient to note that, under s.15, a person who was entitled to a right of working minerals and who claimed to have been “lawfully working or developing the minerals at the relevant date”, could apply to the first named respondents (hereafter “the Board”) for the registration of the minerals as “excepted minerals”. Section 15(4) then provides that
“a person whose application is rejected by [the Board] shall have the right to apply to the High Court for an order directing the Board to register the minerals as excepted minerals and if the court is satisfied that, by virtue of s.14, the minerals are excepted from the application of s.12 the court may direct the Board to register them accordingly.”
5. On the 25th April 1980, the company applied to the Board for the registration of minerals described in the application as excepted minerals under Part II of the 1979 Act. On the 20th February 1984, the Board issued the following determination of the application:
“[the Board]….
FINDS:
6. Coolbawn: that the application in respect of part of this townland has been withdrawn and that no satisfactory evidence has been submitted to it to show that minerals were being lawfully worked or developed in the remainder at the 15th December 1978;
7. Aghamucky, Crutt, Kiltown, Moyhora: that no satisfactory evidence has been submitted to it to show that minerals were being lawfully worked or developed in these areas at the 15th December 1978;
8. AND REJECTS the application for registration of the minerals as excepted from the application of section 12 of [the 1979 Act];
9. THE REASON for the decision of [the Board] is that no satisfactory evidence has been submitted to the Board to support the application for the registration of the minerals as excepted minerals.”
10. Following that decision, the applicants’ legal representatives indicated that they would be lodging an appeal. That not having been done by mid-1985, the Minister informed the applicants by a letter dated 27th May 1985 that, in view of the Board’s decision, the right to work the minerals in specified townlands was vested in the Minister. There followed correspondence and discussions between the applicants, their solicitors and officials of the Minister. It would seem that at this stage the applicants were continuing with some mining operations which, in the view of the Minister, were in breach of the relevant legislation. In an acerbic response, the applicants’ solicitors characterised the Minister’s alleged concern as “idiotic” since, as they claimed, the applicants had been mining coal for the last 30 years on the Leinster coalfield “by right and authority”.
11. There followed protracted, desultory and inconclusive discussions between the parties into which it is unnecessary to go in any detail. It is sufficient to say that they included a proposal to grant a mining lease in respect of some of the areas concerned and that on the 11th January 1988 a draft lease was forwarded by the Minister to the applicants. There appear to have been no further developments, however, until the 25th October 1991, when the applicants’ solicitors were informed that the Minister was considering an application for a mining lease of the area concerned from a company called Ormonde Brick Limited. The Minister, in accordance with s.18 of the 1979 Act, gave notice by advertisement between the 3rd April 1992 and the 7th April 1992 of his intention to grant that company the lease in question. The applicants made representations to the Minister as to the granting of the lease and they were referred to the Board in accordance with s.18(3) of the 1979 Act.
12. Following an inquiry, the Board issued a report on the 19th October 1992 and came to the following conclusions and recommendations:
(1) that they had already rejected the application by the applicants for the registration of the minerals as excepted in their decision of 20th February 1984;
(2) that a certain provision should be included in the lease to be executed in favour of Ormonde Brick Limited because of the concerns of another party.
13. It is clear from the Board’s report that, at the inquiry, the applicants’ solicitor reserved his clients’ position as to the previous ruling of the Board.
14. On the 17th May 1993, the High Court gave leave to the applicants to seek relief by way of judicial review in the form of orders of certiorari quashing the decision of the Board of the 14th December 1992 and a declaration that the provisions of ss.12 and 17 of the 1979 Act are contrary to Articles 40.1, 40.3 and 43 of the Constitution. In their statement of opposition, the respondents (who were the same as the respondents in these proceedings) pleaded inter alia that the applicants had been guilty of “undue delay” in bringing the proceedings.
15. On the 21st October 1994, the present proceedings were instituted by plenary summons in which the applicants claimed
“1. A declaration that [the first named applicant] was working or developing the lands in respect of which it has mineral rights at Slatt Lower (part), Agahaterry (part), Turra (part), Coolbawn (part), Slatt Upper, Doonane, Ardra, Castlecomer – Demense, Farnans, Aghamucky, Crutt, Loon, Kiltown, Kilgorey and Moyhora in Counties of Carlow and Laois on or before 15th December 1978
“2. An order allowing an appeal against the decision of the [Board] dated February 1984 and substituting therefore an order declaring that the [applicants] herein are entitled to claim the benefit of s.15 of the 1979 Act in respect of the said lands in question.”
16. A statement of claim and defences having been delivered on behalf of the applicants and the respondents, the preliminary issue which is the subject of this appeal was heard by Carroll J. It was stated on behalf of the Board that it would abide the order of the court and they took no further part in the proceedings. In an affidavit on behalf of the remaining respondents (hereafter “the respondents”), Mr. John Pyne, senior geologist in the Department of Transport, Energy and Communications, said that the respondents had no record of the applicant’s activities in the relevant townlands for the period prior to the 15th December 1978. He further deposed that a key witness as to the extent of those activities would have been Mr. Michael O’Meara, an officer in the Geological Survey of Ireland until 1984, who had died in 1986.
17. In a written judgment of the 5th October 1998 the learned High Court judge concluded that the delay on the part of the applicants in instituting these proceedings was inordinate and inexcusable and that in the interests of justice the applicant’s claim should be struck out. From that decision, the applicants have now appealed to this court.
18. On behalf of the applicants, Mr. Gerard Hogan SC did not seriously contest that the delay of over 10 years in instituting the proceedings was inordinate. He urged, however, that it was excusable having regard to what he described as the “stalemate” between the parties which was the result of their having failed to reach agreement as to the terms of a mining lease, following the unsuccessful application by his clients to have their minerals registered as excepted minerals. The applicants, for their part, were happy that this situation should continue and resorted to legal proceedings only where the Board had, in effect, disturbed the status quo in November 1992 by recommending the grant of a mining lease.
19. Mr. Hogan, however, submitted that, even assuming the delay to have been both inordinate and inexcusable, the High Court and this court were required under the principles laid down by this court in Primor plc -v- Stokes Kennedy Crowley [1996] 2IR 459 at pp. 475-476 to determine whether the balance of justice was in favour of, or against, further proceedings in the case. He submitted that, in this case, the learned High Court judge was wrong in law in concluding that the plaintiff’s claim would have to be determined by the High Court after hearing oral evidence and that this would be unfair to the respondents, having regard to the difficulties of finding witnesses as to the state of facts existing on the ground in December 1978. He said that, on the contrary, the plaintiff’s claim could be determined solely on the documentary evidence available and that no oral evidence would be required.
20. In support of this contention, Mr. Hogan relied strongly on what he described as the clarification of the scope of a statutory appeal contained in Orange Communications Limited -v- Director of Telecommunication Regulation [2000] 4 IR 136. He submitted that it was clear from that decision that what he described as an appeal of this nature, while slightly wider than proceedings by way of judicial review simpliciter , was determined by reference only to the materials which were before the Board when they made their determination.
21. Mr. Hogan further submitted that, in any event, there was no such delay and consequent prejudice, as referred to in the judgment of Hamilton CJ in Primor , which would make it unfair to the respondents to allow the matter to proceed.
22. On behalf of the respondents, Mr. Ian Finlay SC submitted that the proceedings instituted by the applicants sought relief under s.15(4) of the 1979 Act. That provision, he said, did not envisage the bringing of any appeal from the decision of the Board: no such language appeared in the subsection. He submitted that it envisaged an application de novo to the High Court in the course of which the applicants would be perfectly entitled to adduce oral evidence as to the state of facts in 1978. The respondents were clearly and unarguably prejudiced in meeting such a claim based on oral evidence, not merely by the passage of time and the fact that peoples’ memories at this stage would be far less reliable, but also by the fact that one of their principal witnesses, Mr. O’Meara, had died in 1986. In the result, the balance of justice required that the proceedings be struck out.
Section 14 of the 1979 Act provides that
“(1). Subject to s.15(5), s.12 shall not apply to minerals of any description in any land if, at the 15th day of December 1978, a person was lawfully working or developing a mine of such minerals.
(2). For the purpose of s.s.(1) a person shall be deemed to be developing a mine if, on an application under s.15, he proves that before the date mentioned in that subsection he had decided to do so in accordance with plans based upon a comprehensive study indicating a reasonable prospect of commercial development and that his decision stood at the passing of this Act.”
Section 15 provides inter alia that
“(1). A person entitled to a right of working minerals which, by virtue of s.14, are excepted from the application of s.12 may apply to the [Board] in such manner and within such time as may be prescribed for the registration of such minerals as excepted minerals
(2). Notice of the application shall be served by the [Board] on the Minister and on such persons as may appear to the Board to have an interest in the proceedings
(3). Where, on an application under this section, the [Board] finds that minerals of any description in any land are excepted from the application of s.12 the Board shall register such minerals as excepted minerals.”
23. Subsection (4), as already noted, then goes on to provide that a person whose application is rejected by the Board has the right to apply to the High Court for an order directing the Board to register the minerals as “excepted minerals”.
24. The first question that arises is as to the scope of the High Court’s jurisdiction when considering an application under s.15(4). As is demonstrated by the authorities, in determining its scope the court must have regard to the actual words used by the legislature. However, certain general principles are clear: as Costello J, as he then was, said in Dunne -v- Minister for Fisheries [1984] IR 230,
“As pointed out in Wade’s Administrative Law (5th Ed., p.34): ‘the system of judicial review is radically different from the system of appeals. When hearing an appeal the court is concerned with the merits of the decision under appeal. When subjecting some administrative act or order to judicial review, the court is concerned with its legality. On an appeal the question is ‘right or wrong?’ On review the question is ‘lawful or unlawful?’”
“However, this does not mean that in every case the court’s jurisdiction on a statutory appeal is the same, in every case the statute in question must be construed. In construing a statute it does not seem to me to be helpful to apply by analogy the rules of judicial review since, by granting a statutory appeal, the legislature must have intended that the court would have powers in addition to those already enjoyed at common law.”
25. Those observations apply with even greater force where, as here, the legislature, designedly it must be assumed, speaks of an application to the High Court for an order directing the registration of the minerals as excepted, rather than an appeal from the decision of the Board rejecting a similar application. Construing the language used in this provision, it is clear beyond argument that the question to be answered is “right or wrong” and not “lawful or unlawful”. I see no reason, in those circumstances, to attribute to the legislature an intention to preclude an applicant from adducing oral evidence to the court with a view to satisfying the court that the decision of the Board was wrong on the merits and not simply a decision at which the Board, on the materials before it, could not lawfully have arrived.
26. In this context, I am satisfied that the decision of the High Court in Orange is of no assistance to the applicants. In that case, the wording of the relevant section provided for an appeal to the High Court against the decision of a particular officer, on the hearing of which the High Court could inter alia confirm the decision or direct the Minister to make some other form of order. Macken J was satisfied that this envisaged a form of judicial review, albeit one which was somewhat wider than conventional judicial review, under which the reasonableness of the officer’s decision should be ascertained by reference only to the materials which she had before her. In stark contrast, the provision with which we are concerned makes it clear that the High Court may direct the registration of the minerals as excepted where it is “satisfied” that they are so excepted by virtue of s.14(1).
27. It is, of course, the case that, if the submission advanced on behalf of the applicants was well founded, the threshold at which the High Court could reach a decision that the Board should be directed to register the minerals as excepted minerals would be significantly higher than would be the case if the submission advanced on behalf of the Minister is correct. However, ultimately the court has to construe the section in accordance with what it considers to have been the intention of legislature and not by reference to any concession, if concession it be, made on behalf of the applicants.
28. I am satisfied, accordingly, that, if the application were now allowed to proceed, the Board would be obliged to consider it, not merely having regard to any documentary materials that might be available, but also in the light of whatever oral evidence the applicants and the Minister were respectively in a position to adduce.
29. It is in that context that the test laid down in the judgment of Hamilton CJ in Primor must be applied in the circumstances of the present case. It is beyond argument that the delay here was inordinate: I am also satisfied that the trial judge was entirely correct in treating it as inexcusable. The mere fact that the parties engaged in some intermittent and inconclusive discussions as to the granting of a mining lease afforded no justification for deferring an application to the court for an order directing the Board to register the minerals as excepted minerals.
30. There remains the final question as to whether the balance of justice was in favour of striking out the proceedings or permitting them to continue. Again, I have no doubt that the trial judge was entirely correct in concluding that it was in favour of striking out the proceedings. Since the applicants would be entitled to adduce to the High Court oral evidence in support of their contention that the minerals were being worked or exploited on the relevant date, the Minister would suffer unarguable prejudice, even if the persons in a position to say what was happening nearly a quarter of a century ago were still available, given the frailty of human memory. The trial judge concluded that this manifest prejudice was seriously exacerbated by the fact that their principal expert witness was dead and again I have no doubt that she was correct in so holding.
Ewins v Independent Newspapers (Ireland) Ltd
[2003] 1 I.R. 583
Keane C.J.
6th March, 2003
This is an appeal from a judgment and order of the High Court (McKechnie J.), in which he refused an application on behalf of the defendants for the striking out of the proceedings on the ground that the plaintiff had been guilty of inordinate and inexcusable delay in prosecuting the proceedings.
The proceedings take the form of an action for damages for libel. They arise out of the publication of an article in the Irish Independent, published by the first defendant and written by the second defendant, which appeared on the 19th April, 1995. The article was in turn published not long after a programme had been broadcast in the United Kingdom on Independent Television on the 18th April, 1995. It would appear, at least it is common case so far as the application to the High Court and the appeal to this court is concerned, that the programme was produced by Carlton Television and contained a number of claims by a person who had formally been a member of the Provisional I.R.A., Mr. Eamon Collins. It is accepted, again, it is common case, that the articles of which the plaintiff complains, were based on statements made by Mr. Collins during the course of the television programme and they are said to have included an allegation that a former Queen’s University lecturer, then living in Dublin had played a major role in an assassination attempt on the then Chief Justice of Northern Ireland. The plaintiff in these proceedings says that this article referred to him and meant, or was understood to mean, that he encouraged Mr. Collins to join the I.R.A., that he encouraged him to embark on a career of murder and other terrorist activities, that he had been a source of intelligence for the I.R.A., that he had leaked to the I.R.A. details of a visit by the Lord Chief Justice of Northern Ireland to Queen’s University, Belfast and had tried to assist in his murder and that he was aware of the involvement of Mr. Collins in the I.R.A. but did not inform the appropriate authorities.
The plenary summons was issued on the 8th December, 1995 and that followed a letter of complaint from the plaintiff’s solicitors which was sent to the Editor of the Irish Independent on the 23rd November, 1995. It effectively made those allegations or said that the article was clearly intended to refer to their client and made the allegations complained of. The letter was responded to on the 13th December, 1995, by the defendants’ then solicitors in which they said that they did not accept the reports were defamatory of him and that they denied any legal liability to the plaintiff and they went on as follows:-
“Further as you are aware, the references of which your client complains were based upon the contents of a television programme entitled ‘Confession’ broadcast on the I.T.V. network on the evening of the 18th April, 1995. Your client has already commenced proceedings against the programme makers and broadcasters of the programme over the contents. In these circumstances, our clients are of the view that any liability in this case rests with the makers and publishers of the broadcast which is the subject matter of their report and that any proceedings brought by your clients against our clients would be entirely subsumed by those proceedings. We confirm, however, that we have authority to accept service of proceedings on behalf of Independent Newspapers Ireland Ltd. and Bernard Purcell.”
That, as I have said, was followed by the issuing of the plenary summons on the 8th December, 1995. An appearance was entered by the
solicitors for the defendants on the 24th January, 1996, which requested the delivery of the statement of claim. There was then a motion to amend the title of the proceedings, as the name of the second defendant had been inadvertently given wrongly and that motion was dealt with by consent on the 26th February, 1996.
Thereafter, on the plaintiff’s side, no further steps were taken in the action until the 20th November, 2000, at which stage he served notice of intention to proceed. He brought a motion for judgment on the 8th February, 2001, but in fact no statement of claim had been delivered at that stage. The statement of claim was then delivered on the 14th February, 2001, although it appears that there had been no order extending the time for its delivery or any consent to its extension. On the 23rd March, 2001, the defendants brought the present motion seeking an order dismissing the plaintiff’s claim for want of prosecution or in the alternative, pursuant to the inherent jurisdiction of the court, on the grounds of inordinate and inexcusable delay on the part of the plaintiff in prosecuting the action.
It should be pointed out that in the meantime on the 27th January, 1999, Mr. Collins was murdered, so, as it is not in dispute, a witness who clearly would be of critical importance in the proceedings as from that time, was no longer available. In the High Court, the judge said that he was of the view that the appropriate period of delay which he had to consider in this case, was from the date when there was an amendment by consent of the title of the action on the 26th February, 1996, to the 27th January, 1999, because he was of the view that, it was only at that time that the prejudice arose to the defendants and that, the defendants would have been in no better position, in other words, if the proceedings had been issued as of that time and that, accordingly, that was the appropriate period of delay he should consider rather than the delay up to the delivery of the statement of claim on the 14th February, 2001, a period of some five years, which is what had been urged on behalf of the defendants as the appropriate period.
I am satisfied that the correct approach on an application of this nature as has been frequently made clear by many authorities, to all of which it is not necessary to refer, is for the court in the first instance to consider whether the actual delay in prosecuting the claim is inordinate. If it is not, then that is of course an end of the application. If it is, the court then has to go on to consider whether although inordinate, it is excusable and again if it is excusable that would be an end of the application. Then, as has been again frequently said, even at that stage where the delay is both inordinate and inexcusable, the court must go on to consider whether the justice of the case, on balance, requires that the proceedings be either struck out or left to take their course. Undoubtedly, one of the matters to which the court has to have regard in deciding that third issue, is whether there is any prejudice resulting to the defendant as a result of the delay. That only comes into the equation of course if one has already come to the conclusion that the delay is both inordinate and inexcusable. If it is inordinate and inexcusable, then the court must consider all the circumstances including, as in this case, the non-availability of a particular witness and it is not an appropriate approach, in my view, to treat the period of delay as being in some sense reduced because the prejudice can be seen to have been present as from a particular time within the overall period and because of that, to treat the period as being reduced.
That was the approach taken by the learned High Court Judge, and I am satisfied that he was not correct in that approach and that one must treat the period of delay in this case as extending from the time when the last active step was taken by the plaintiffs, namely, the obtaining of an order by consent for the amendment of the proceedings in February, 1996, to the actual delivery of the statement of claim on the 14th February, 2001. That is the relevant period of delay in this case, in my view and, of course, it is a period of some five years. I would have no doubt that the period in this case can only be regarded as inordinate, in the sense that it was so out of the ordinary as to call for some explanation as to why the plaintiff allowed the proceedings to remain effectively dormant from that time, for a period of five years, until the delivery of the statement of claim on the 14th February, 2001. Or if one takes another view and, it is by no means clear that it is the correct view, at the time that the notice of intention to proceed was served on the 20th November, 2000. On either view, the best part of five years was the period and, as I have said, that was clearly an inordinate period of delay. I bear in mind, as of course one must, that there was no difficulty so far as the nature of the proceedings were concerned in the delivery of a statement of claim. The article which had caused the offence to the plaintiff, which was the source of his grievance, was there to be read. The plaintiff was there to give his instructions to his solicitors in relation to it. The statement of claim, when it was ultimately delivered, was as one would expect very much along the lines of the originating letter of complaint sent by his solicitors and in the nature of the proceedings there was clearly no reason whatever for delay, such as sometimes arises for example, in personal injuries actions when it may be desirable to defer delivering a statement of claim and particulars of injuries until such time as the plaintiff’s condition is more ascertainable in terms of the possible assessment of damages in the case. No considerations of that sort arose in this case. The delay was clearly inordinate.
So one then turns to the question of whether it was excusable and in that connection the principal reliance of the plaintiff is on the fact that there were other proceedings in being and still are, it would seem, in which the television company that broadcast the original programme is being sued also for defamation. I have already referred to the letter from the defendants’ then solicitors who were apparently also the solicitors for the television company, as it happens, in which they indicated in their view the plaintiff’s proceedings should be deferred until those proceedings against the television company had been determined or, as they put it, they should be subsumed to those proceedings, the somewhat opaque manner in which they phrased it.
The plaintiff, in effect, says that he was entitled, both in the light of that letter and having regard to the protection of his own interest, to take the course of simply issuing the summons and not taking any further step while the other proceedings were being progressed. As to the letter written by the defendants’ solicitors, it is perfectly understandable that the solicitors should have pointed out to the plaintiff’s solicitor that it might be a sensible course not to go on with the proceedings until such time as the other proceedings had been disposed of and it was understandable that the defendants would not have wished any proceedings to be issued if they could so persuade the plaintiff.
The first matter to be observed is that the plaintiff did not accede to those blandishments, because he in fact issued the plenary summons but simply took no further steps, other than the very preliminary steps I have referred to as to amending the title and so on. He simply took no further steps. It is not in my view open to him at this stage, some five years later, to say that he did that for tactical reasons of his own which, it is clear, he never actually formally communicated to the defendants, saying that this was why he was not pursuing the claim. He simply took that decision of his own motion and if it should transpire that as a result of his own decision as to how he would proceed, if he elected to take that course to which it cannot be said that the defendants contributed in any way, then he has also to accept the consequences if the delay he allowed to ensue is so inordinate as to entitle the defendants, unless justice indicates otherwise, to have the proceedings struck out.
That is a risk he takes in pursuing that particular course of inaction in this case.
I am satisfied that the delay was both inordinate and inexcusable and it then remains for consideration as to whether, in terms of the judgment in Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459, the balance of justice is in favour of or against the proceeding of the case. That, as counsel for the plaintiff correctly submits, is of course a discretionary matter in which this court would have due regard to the fact that the trial judge has exercised his discretion in a particular way. But of course this court must also consider whether it was a proper exercise by him of his discretion in the sense that he can be seen to have applied the appropriate legal principles.
It is clear that among the matters which the court has to take into account are whether the delay and consequential prejudice in the special facts of the case are such as to make it unfair to the defendants to allow the action to proceed and to make it just to strike out the plaintiff’s action and I will return to that in a moment because that is a quotation from Hamilton C.J. in Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R 459. But he also refers to the fact that since, litigation is conducted by two parties, the conduct of both parties should be considered and whether any delay or conduct of the defendants amounted to acquiescence on the part of the defendants in the plaintiff’s delay. It played some part in the determination of the trial judge that the defendants took no action by way of motion to bring this motion at an earlier stage to strike out the proceedings and that appears to have played a part in the exercise by the trial judge of his discretion in this case.
The final matter which appears to be relevant and which is particularly relevant to this case is 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 defendants. There is not, of course, the slightest doubt, that because of the death of Mr. Collins, the defendants, if this action now proceeds, will have to defend it without being able to rely on the evidence of a witness who is clearly of critical importance and that, in circumstances which are no fault of theirs. I am satisfied that that must undoubtedly give rise to a substantial risk of an unfair trial. It arises in circumstances for which the defendants cannot be held to be responsible and, so far as any delay on the part of the defendants is concerned, the courts in dealing with these matters have never gone so far as to say that a defendant, in every case where he fails to bring a motion to dismiss at an earlier stage, must be held to have been guilty of conduct, whether by way of delay or acquiescence, which is such as to permit an action to proceed when it would be unjust to allow it to proceed. I am satisfied that this is such a case, where the fact that the defendants did not decide to bring the motion to dismiss until the stage at which the plaintiff belatedly served the statement of claim, would not be of itself a sufficient ground for refusing the relief they now claim.
It also appears to me that, in this case, when one is considering whether it is unjust to allow the action to proceed, one must have regard to the fact that proceedings are in being which arise, not out of the same article, of course, but out of publication of defamatory material of a similar nature and by defendants who would also appear to be a mark for any damages that the plaintiff may be awarded. The court has been informed on this appeal that a similar motion has been brought to strike out those proceedings by the defendants in those proceedings and, of course, nothing I would say should be taken as, in any way, prejudging what might be the adjudication of the High Court on that motion. We are simply concerned with the motion in this case. It is undoubtedly a factor to which one is obliged to have regard that there are in being proceedings which, if the plaintiff was, in fact, wrongly and falsely defamed by the defendants in these proceedings, would afford him a remedy in those other proceedings. I say that merely to differentiate this case from those other cases of which Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 is a particularly striking example, where the then President of the High Court made it clear that he was considerably influenced in his decision in that case by the dire consequences, as he called them, for the plaintiff in that case, who suffered a very serious personal injury and who would be entirely shut out from relief of any sort and that is undoubtedly a factor to which the courts have always had regard, but it certainly does not play quite the same part in this case as it does in other cases.
I am also satisfied that the High Court Judge was in error in attaching considerable weight, as he appears to have done, to the fact that the late Mr. Collins died while the period of six years, which would be the appropriate statutory limitation period in a defamation case of this nature, was still running. The plaintiff would have been entitled, as a matter of strict law, to institute these proceedings even after the death of Mr. Collins and if he had done so, the trial judge pointed out, this particular motion could never have succeeded.
That of course is so, but it is a hypothesis to which I think the trial judge was in error in attaching the significance which he appears to have attached to it. A plaintiff in defamation proceedings, as opposed to many other forms of proceedings, is under a particular onus to institute his proceedings instantly and without delay and, of course, not simply because he will be otherwise met with the response that it cannot have been of such significance to his reputation if he delayed so long to bring the proceedings but also in his own interests in order, at once, to restore the damage that he sees to have been done to his reputation by the offending publication. Therefore, I do not think that an issue such as arose in this case is to be tested by what would be extraordinarily unlikely conduct for a plaintiff bringing anything in the nature of bona fide proceedings for defamation, namely, that he would wait until close to the expiration of the limitation period.
The plaintiff in this case initially acted as one would expect a plaintiff to act, namely, admittedly after some few months delay, to write the originating letter and then without any great additional delay to institute theproceedings. Having then failed to deliver the statement of claim for such an inordinate length of time, without any justification, he must, in my view then, take the consequences of the inordinate and inexcusable delay, if the balance of justice, having regard to all the factors identified in the authorities, points clearly in favour of striking out the proceedings.
For those reasons, I would allow the appeal and substitute for the order of the High Court Judge an order striking out the proceedings.
McGuinness J.
I agree with the judgment of Keane C.J.
Geoghegan J.
I also agree with the judgment of Keane C.J.
O’Connor v John Player and Sons Ltd
[2004] 2 I.L.R.M. 321.
JUDGMENT of Mr. Justice Quirke delivered on the 12 day of March 2004.
This is an appeal by the plaintiff against orders made pursuant to the provisions of O. 63 r. 1 (a) of the Rules of the Superior Courts on 5th December, 2003, 28th November, 2002, and 10th April, 2003, whereby the Master of the High Court dismissed the plaintiff’s claims against the first, second and third named defendants respectively for want of prosecution.
The Plaintiff seeks orders from this court setting aside the orders of the Master and permitting her to proceed with her claims against the defendants.
It is pertinent to note from the outset that the plaintiff’s claim is one of a series of approximately 138 similar claims, which have been commenced on behalf of various claimants by the plaintiff’s solicitors by way of Plenary Summons against the three defendants.
The defendants are corporate bodies engaged in the manufacture, distribution and supply of tobacco and cigarettes within this jurisdiction. The plaintiff is claiming damages from the defendant for personal injuries, loss and damage allegedly sustained by the plaintiff by reason of negligence, breach of duty and breach of contract on the part of the defendants inter alia, (a) in exposing the plaintiff to the risk of injury by causing or permitting her to smoke cigarettes, when they knew, or ought to have known, that it was unsafe and dangerous for her to do so and (b) by continuing to manufacture, distribute and market cigarettes and tobacco without warning, or adequately warning, the plaintiff of the dangers associated with smoking and exposure to tobacco and tobacco smoke.
Claims in similar, if not identical, terms have been made by the plaintiff’s solicitors on behalf of 137 other persons and it is acknowledged by the parties that the existence of those other claims made concurrently with the plaintiff’s claim by the same solicitors against the same defendants has a relevance to this appeal.
The plaintiff’s claim against the defendants now stands dismissed by the Master of the High Court on the grounds that the plaintiff has been guilty of such inordinate and inexcusable delay in prosecuting her claim that the balance of justice requires that her action should not proceed.
The plaintiff now seeks an order setting aside the Master’s order and permitting the plaintiff to proceed with her action.
RELEVANT FACTS
1. The plaintiff’s claim was commenced by the issue of a plenary summons on 23rd December, 1997. Some 364 days later (on the 22nd December, 1998), the summons was served on the defendants. Within a further 30 days (by 21st January, 1999), appearances had been entered on behalf of all three defendants.
2. On 12th and 13th March, 2002, notices of intention to proceed were issued on behalf of the defendants. Thereafter, on 5th September, 2002 and 17th September, 2002, notices of motion were issued on behalf of the third and second named defendants respectively seeking the relief which is the subject of this appeal.
On 22nd and 26th November, 2002, statements of claim were delivered on behalf of the plaintiff outlining the plaintiffs claim against all three defendants in identical terms.
By order of the Master dated the 28th November, 2002 the third named defendant was granted the relief which is the subject of this appeal.
By order of the Master dated 10th April, 2003 the second named defendant was granted the relief which is the subject of this appeal.
On 20th August, 2003, a notice of motion was issued on behalf of the first named defendant seeking the relief which is the subject of this appeal and that relief was granted by order of the Master of the High Court dated 5th December, 2003.
It follows from the foregoing that a period of four years and eleven months elapsed between the date of issue of the plenary summons in these proceedings and the delivery of the statement of claim. Two of the defendants had issued notices of motion seeking to dismiss the plaintiff’s claim for want of prosecution some two months before the statement of claim was delivered. The other defendant (the first defendant) issued a similar notice nine months after the delivery of the statement of claim.
3. By letter dated 19th February, 1999, Messrs. Arthur Cox and Company, solicitors on behalf of the third named defendant, wrote to the plaintiff’s solicitors, inter alia, in the following terms:
“It is clear that all medical records and notes relating to your clients are of critical importance and of relevance to the proceedings.
We write to request that you immediately take all necessary steps to ensure that your clients and all doctors, hospitals, and other parties, who may hold medical and other records and documents relating directly or indirectly to your client’s health carefully identify and preserve such records and documents.
We believe that it would be of benefit to all parties to the litigation referred to above that all medical records and notes relating to your clients be collected from all possible locations at which they may currently be held. We would be prepared to undertake the task of collection of medical records and notes for the purposes detailed above, subject to any arrangements that might need to be agreed with the other parties to this litigation. We should be obliged if you would take your client’s instructions and let us know whether or not your clients are prepared to consent to this proposal.”
In response the plaintiff’s solicitors replied by letter dated 3rd March, 1999, in the following terms:
“With reference to your letter dated 19th ult. we have considered same and subject to our client’s instructions we would be willing to provide you with the required authorities on the following basis;
1. That copies of the medical records and notes are made available to us immediately.
2. That the authority is provided on a case by case basis.
3. That we are copied on all communications relating to the collection of our client’s medical records and notes.
4. That the defendants firm of solicitors which collects the medical records and notes is responsible for all costs associated therewith.
On receipt of your consent to the above we will forward …. Authority Forms to our clients for signature and return. We will then forward same to you on a case by case basis…”
Messrs. Arthur Cox and Company responded by letter dated 1st April, 1999 indicating that all three defendants were in agreement with the proposed arrangement for the collection of medical records. That method of collection was adopted by the parties to these proceedings (and by the other 137 claimants) in the terms outlined in the exchange of correspondence to which I have just referred.
4. By letter dated 26th November, 2001, Messrs. Arthur Cox & Company, on behalf of the third defendant, wrote to the plaintiff’s solicitors in the following terms:
“We refer to the above proceedings which were issued on 23rd December, 1997, on behalf of your client Eileen O’Connor. We accepted service of the Plenary Summons on behalf of Benson and Hedges (Dublin) Ltd. on 22nd December, 1998, and entered an appearance thereto on 25th January, 1999. To date no Statement of Claim has been delivered notwithstanding the expiry of three years and eleven months since these proceedings were first issued.
The continuing delay in prosecuting these proceedings is causing ongoing prejudice to our client. If your client intends to proceed with her claim we require you to deliver a Statement of Claim on her behalf within 28 days from the date of this letter. We reserve our client’s position generally in relation to the issue of delay.”
In response, Messrs. Ward and Fitzpatrick, on behalf of the plaintiff, by letter dated 29th November, 2001, indicated:
“We refer to your letters dated 26th November, seeking Statements of Claim in approximately 40 individual cases. We are surprised at the contents of the letter and refer to your letter dated 19th February, 1999, in which you agreed to provide medicals in each individual action. Unless and until we receive written confirmation from you that all medicals have been taken up and forwarded to this office we are not in a position to file our Statement of Claim.
We look forward to hearing from you urgently in the matter.”
Between 10th December, 2001 and 18th April, 2002, there was a somewhat heated exchange of correspondence between the solicitors on behalf of the third named defendant and the solicitors on behalf of the plaintiff, which disclosed a clear difference of view as to the cause of the delay by the solicitors on behalf of the plaintiff in delivering a statement of claim.
In summary, the defendants rejected the contention advanced on behalf of the plaintiff that the collection of so-called “lifetime medical records” had caused or contributed to the delay in the delivery of the statement of claim.
A letter from the solicitors on behalf of the third named defendant, dated 18th April, 2002, concluded as follows:
“We do not propose to refrain from our threatened applications unless Statements of Claim are delivered forthwith.
We reserve our position in relation to the serious delay of the plaintiff in advancing this litigation, and to the ongoing prejudice caused to our clients.”
5. By letter dated the 17th July, 2002, the solicitors on behalf of the plaintiff wrote to Messrs. Arthur Cox and Company in the following terms: “You refer to our telephone conversation in relation to the cases in which we have received your Notice of Intention to Proceed.
We confirm that we are reviewing those cases and taking the clients instructions thereon and we will be in a position to revert to you (by close of business 24th, July) with a comprehensive list of cases in which we have no instructions to proceed. We would request that you would refrain from issuing any Motions as the matters are being dealt with currently.
The difficulty for us is that it is taking longer for us to get clients instructions than originally anticipated but as advised we would hope to have a comprehensive list over to you presently.”
By letter dated 26th July, 2002, Messrs. Arthur Cox and Company replied, inter alia, in the following terms:
“…We first spoke to you in relation to this matter on 3rd July, 2002, when we suggested to you that you should revert to us within seven days, indicating those of your clients’ cases which were proceeding and those which were not. You did not respond to us by 10th July. We telephoned you on a number of occasions but were unable to speak to you. Eventually we left a message with your receptionist, to the effect that as no contact had been received from you, we were proceeding with Motions to dismiss. We have issued and served two such motions, returnable for 24th October, in the case of Mary Sullivan and Jean Thompson respectively. These motions were served on you before your letter dated 17th July, was transmitted to us on 19th July.
Having received your letter dated 17th July, we deferred issuing further Motions pending hearing from you by close of business on 24th July. This deadline has now passed and we are now instructed to proceed with motions to dismiss in all cases having regard to your persistent and continued failure either to discontinue these claims or to deliver Statement of Claim.
In addition to the two cases in which motions have already been issued, our clients are defendants to claims brought by 42 plaintiffs. As of now, Motions to dismiss are in preparation in relation to all of such cases. However, we are instructed to withhold the issue of these motions for one further week, within which period we await hearing from you with the Statement of Claim in relation to each case which is proceeding, or with a notice of discontinuance in relation to all cases which are not proceeding. If we have not heard from you as aforesaid by close of business on 2nd August, 2002, Motions to dismiss will be issued in all cases…”
6. By letter dated 10th December, 2001, Messrs. Goodbody, on behalf of the second defendant, wrote to the plaintiff’s solicitors in the following terms:
“The Plenary Summons was issued on 23/12/1997 and was served on us on 22/12/1998. We entered a “without prejudice” Appearance on behalf of Rothmans of Pall Mall (Ireland) Ltd. on 22/12/1998. Even though almost four years have elapsed since you first issued these proceedings you still have not served your Statement of Claim in relation to this matter.
This is both an unjust and inexcusable delay and we reserve our clients right in relation to the past, present and any future delay by you and we also reserve our clients rights in relation to the prejudice to our client which has been or which may be caused by such delay.
We call upon you to serve a Statement of Claim within 21 days if your client intends to proceed with this claim.”
By letter dated 10th January, 2002 the plaintiff’s solicitors responded in the following terms:
“We refer to your letter of 10th December, seeking Statements of Claim in approximately 50 individual cases. We are surprised at the contents of your letters and refer to your letter dated 25th February, 1999 in which you agree to provide medicals in each individual action. Unless and until we receive written confirmation from you that all medicals have been taken up and forwarded to this office we are not in a position to file our Statement of Claim.”
There followed an exchange of correspondence and a difference of view similar to that which occurred between the plaintiffs solicitors and the solicitors on behalf of the third named defendant.
This exchange of correspondence concluded with a letter from Messrs. Goodbody to the plaintiff’s solicitors dated 12th April, which contained the following warning:
“In the circumstances, we do not see any reason why our clients should accede to your request that we defer making applications and we intend to advise them to proceed to seek Orders.”
7. By letter dated the 19th November, 2001, Messrs. McCann Fitzgerald, the solicitors on behalf of the first named defendant, wrote to the plaintiff’s solicitors in the following terms:
“…These proceedings were issued by you on 23rd December, 1997, and served on our client on 22nd December, 1998. The defence of this action has been and continues to be prejudiced by your failure to progress these proceedings including service of a Statement of Claim. We urge you to serve a Statement of Claim within 28 days if it is your client’s intention to proceed with this claim and we reserve our client’s position in relation to the delayed date.”
The plaintiff’s solicitors replied in the following terms by letter dated 29th November, 2001.
“We refer to your letter stated 19th November, seeking Statements of Claim in approximately 80 individual cases. We are surprised at the contents of the letter and refer to your letter dated 24th February, 1999, in which you agreed to provide medicals on each individual action. Unless and until we receive written confirmation from you that all medicals have been taken up and forwarded to this office we are not in a position to file our Statement of Claim.
We look forward to hearing from you urgently in the matter.”
By letter dated 1st February, 2002, the solicitors on behalf of the first defendant wrote to the plaintiff’s solicitors inter alia in the following terms:
“Over four years have elapsed since you first issued proceedings naming our client as a defendant. Before instituting proceedings, we assume that you obtained full and detailed instructions in relation to plaintiff’s smoking and medical histories including details of any condition which it is alleged would cause to the consequence of smoking cigarettes manufactured by our client. As such, we see no reason why you are not now in a position to serve Statements of Claim particularly since you have confirmed that they have been prepared.
We repeat our demand that you deliver detailed Statements of Claim in cases where your clients intend to proceed. For the avoidance of doubt we continue to reserve our client’s rights in relation to the ongoing delay.”
This letter contained a reference to an earlier letter in which the plaintiff’s solicitors had informed Messrs. Arthur Cox and Company, on behalf of the second named defendant, that:
“…We do have draft Statements of Claim ready and on your confirmation that you have provided us with the agreed medicals and notes for individual clients we will be in a position to serve these Statements of Claim.”
– (See letter from Arthur Cox and Company to the plaintiff’s solicitors dated 15th January, 2002.)
8. Between the 17th February, 2000, and 27th July, 2001, various documents in relation to the medical history of the plaintiff were collected by the solicitors on behalf of the defendants and copies of those documents were furnished to the plaintiff’s solicitors. There was correspondence between the solicitors in relation to these records up to August 2003.
THE RELIEF SOUGHT
Order 20 rule 3 of the Rules of the Superior Courts provides as follows:
“Where the defendant enters an appearance to a plenary summons and, at the time of entering such appearance or within eight days thereafter, gives notice in writing to the plaintiff or his solicitors, that he requires a statement of claim to be delivered, the plaintiff, if he has not already done so, shall deliver a statement of claim within 21 days from the receipt of such notice”.
Order 27 rule 1 provides as follows:
“If the plaintiff, being bound to deliver a statement of claim, does not deliver same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the court to dismiss the action, with costs, for want of prosecution; and on the hearing of such application the Court may order the action to be dismissed accordingly, or may make such order on such terms as the Court shall think just.”
Order 63 rule 1(8) provides as follows:
“In addition to any orders which the Master may make under any other of these Rules the Master may make any of the following orders:
“… (8) An order to dismiss an action with costs for want of prosecution or for failure to make an affidavit of discovery or to answer interrogatories.”
The principles of law which apply to an application to dismiss an action for want of prosecution are now well settled, having been identified in a number of decisions of the courts within this jurisdiction, notably by the Supreme Court (Hamilton C.J.) in the case of Primor Plc v. Stokes Kennedy Crowley and Anor. [1996] 2 I.R. 459.
Those principles were usefully summarised in the headnote to that case (at p. 460) in the following terms:
“(1) that the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice so required;
(2) that the party who sought the dismissal on the ground of delay in the prosecution of the action must establish that the delay has been inordinate and inexcusable;
(3) that even where the delay had been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice was in favour of or against the case proceeding;
(4) that when considering this obligation the court was entitled to take into consideration and have regard to –
(a) the implied constitutional principles of basic fairness of procedures,
(b) whether the delay and consequent prejudice in the special facts of the case were such that made it unfair to the defendant to allow the action to proceed and made it just to strike out the action,
(c) any delay on the part of the defendant, because litigation was a two party operation and the conduct of both parties should be looked at,
(d) whether any delay or conduct of a defendant amounted to acquiescence on the part of the defendant in the plaintiff’s delay,
(e) the fact that conduct by the defendant which induced the plaintiff to incur further expense in pursing the action did not, in law, constitute an absolute bar preventing the defendant from obtaining a dismissal but was a relevant factor to be taken into account by the court in exercising its discretion whether or not to dismiss, the weight to be attached to such conduct depending on all the circumstances of the particular case,
(f) whether the delay had given rise to a substantial risk that it was not possible to have a fair trial or it was likely to cause or had caused serious prejudice to the defendant,
(g) the fact that the prejudice to the defendant referred to in (f) might arise in many ways and be other than that merely caused by the delay, including damage to the defendants’ reputation and business.”
The application of those principles to the instant case requires consideration of the following questions:
1. was there inordinate delay on the part of the plaintiff in prosecuting her claim against the defendants,
2. if there was such inordinate delay, was that delay excusable and
3. if the delay has been both inordinate and inexcusable, is the balance of justice in favour of or against this case proceeding, having regard to the facts disclosed on the evidence.
1. WAS THE DELAY INORDINATE?
There was a delay of almost precisely 12 months between the issue and service of the plenary summons in this case.
Within 30 days of the service of the plenary summons, all three defendants had entered appearances requiring delivery of a statement of claim within the 21 days limited in that behalf by O. 20 r. 3 of the Rules of the Superior Courts.
Notwithstanding that time limit, statements of claim were not delivered by the plaintiff until 22nd November, 2002, which was a period in excess of three years and ten months after the dates of entry of appearance and four years and eleven months from the date of service of the plenary summons.
It would be difficult to envisage circumstances where such a delay between the issue and service of proceedings and the delivery of a statement of claim would not be described as inordinate and no such circumstances have been suggested by, or on behalf of, the Plaintiff.
The fact that the proceedings themselves comprised a claim for damages arising out of alleged events covering a period in excess of 50 years adds even greater weight to the contention advanced on behalf of the defendants, (which I accept without qualification), that the delay on the part of the plaintiff in delivering a statement of claim was inordinate within the meaning ascribed to that adjective in the Primor case and the other authorities upon which reliance has been placed. Accordingly, I am satisfied that the defendants have discharged the onus which rests upon them of establishing that there has been inordinate delay on the part of the plaintiff in prosecuting her claim against the defendants.
2. WAS THE DELAY BOTH INORDINATE AND INEXCUSABLE?
The principle identified by Hamilton C.J. in Primor to the effect that:
“It must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;” has been confirmed and re-stated by the Supreme Court (Fennelly.J) in Anglo Irish Beef Processors v. Montgomery [2002] 3 IR 510 in the following terms:
“It is always necessary for the defendant applicant to demonstrate, and he bears that burden, that the plaintiff has been guilty of inordinate and inexcusable delay…”
Mr. Murray S.C argued that where inordinate delay has been proved, some explanation for the delay is called for from the plaintiff. He pointed out that the plaintiff requires from the court an extension of the time within which to deliver a statement of claim and contended that this Court should prima face refuse to grant such an extension in the absence of an explanation (see the decision of Carswell J. in Hughes v. Hughes [1990] N.I. 295).
In the instant case, the plaintiff has, in correspondence and otherwise, voluntarily offered explanations aimed at excusing the delay in prosecuting her claim and the defendants have freely undertaken the onus of establishing, on the evidence, that those explanations are inadequate and that the plaintiff’s delay has been both inordinate and inexcusable.
Although the onus of establishing that the delay complained of has been inexcusable clearly rests upon the party so alleging, the onus may be discharged by way of evidence and argument demonstrating that no reasonable or credible explanation has been offered, or can reasonably be said to exist, which would account for, or excuse, the delay.
The explanations, or excuses, offered on behalf of the plaintiff can be summarised as follows:
1. It was necessary to collect the plaintiff’s “lifetime medical records”. The solicitors on behalf of the defendants undertook to collect those records and to provide the plaintiff’s solicitors with copies thereof. An ongoing collaborative process was commenced in which the defendants participated and acquiesced. It is claimed that this resulted in delay between February 1999 and November 2001.
2. The plaintiff was one of some 138 claimants, who were represented by the same solicitors, who were seeking similar relief against the same defendants. It is claimed that, as part of the ongoing collaborative process, the plaintiff’s solicitors, in early 2002, sought to “streamline” the process and to withdraw or discontinue claims on behalf of persons who no longer wished to make claims against the defendants. The plaintiff claims that this “streamlining” process in respect of other claimants contributed further to the delay in prosecuting her claim and
3. Whilst perusal of her medical records was not essential to the preparation of the plaintiff’s statement of claim, it is claimed that such perusal was required before a decision could be taken as to whether or not her claim should be prosecuted against the defendants.
1. “Lifetime medical records”.
By letter dated 19th February, 1999, the solicitors on behalf of the third named defendant offered to collect the lifetime medical records in respect of the plaintiff, acknowledging that such medical records and notes were “.. of critical importance and relevance to the proceedings.”
This offer was accepted on behalf of the plaintiff by letter dated 1st March, 1999. Thereafter, copy medical reports were provided by Messrs. Goodbody and Company, on behalf of the second named defendant, on various dates and in particular on 30th May, 2000, 23rd August, 2000 and 12th September, 2000.
There was additional correspondence between Messrs. Goodbody and the plaintiff’s solicitors in relation to medical records between 17th February, 2000 and 9th August, 2003. On 5th June, 2003, the plaintiff’s solicitors were in correspondence with Dr. Egan in relation to the plaintiff’s medical records.
Undeniably, therefore, there was agreement between the parties in relation to the collection of “lifetime medical records” and that these records were “…of critical importance and relevance to the proceedings”.
The fact of that agreement, however, did not relieve the plaintiff of her obligation to prosecute her claim against the defendants with reasonable expedition.
I have referred earlier to the fact that the plaintiff’s claim is for damages for alleged injury arising out of events covering a period in excess of 50 years. The need for the expeditious prosecution of such a claim is obvious and has been confirmed by the Supreme Court (Murphy J.) in Collins v. Bus Atha Cliath (Unreported, Supreme Court 22nd October, 1999). In that case the court observed, inter alia, (at page 1) that:
“The delay, and that there was, in instituting the proceedings was not fatal to the plaintiff’s claim. On the other hand it was pointed out by Henchy J. in Sheehan v. Amond [1982] I.R. 235 that where there is delay in instituting proceedings the subsequent steps should be taken with expedition.”
In the instant case, the plaintiff had received copies of most of her medical records by the end of the year 2000, notwithstanding correspondence in relation to medical details as late as 9th August, 2003.
2. The “streamlining” process.
Evidence has been adduced indicating that at some time early in the year 2002, the plaintiff’s solicitors engaged in an exercise whereby they took instructions from the 138 claimants in order to establish whether or not they wished to continue to prosecute their claims against the defendants. In consequence of this exercise, the majority of those claimants withdrew their claims against the defendants.
On behalf of the plaintiff it is contended that this was a “streamlining” process”, which contributed to the delay on the part of the plaintiff in delivering a statement of claim.
In response, the defendants contend that they were not made aware of any such “process” until July of 2002 and their agreement to defer the issue of motions to dismiss for a brief period on this account cannot be construed as acquiescence of the kind which would comprise a contributory factor in relation to the delay complained of.
3. In an affidavit sworn on 29th January, 2003, Mr. Ward on behalf of the plaintiff candidly conceded that:
“…Whilst I accept that the sight of medical recorded in itself is not essential to the preparation of the Statement of Claim, those medical records are required before any further steps are taken in relation to the prosecution of each of the individual plaintiff’s cases.”
Mr. Cush SC, on behalf of the plaintiff, argued that the statement of claim could not be delivered on behalf of the plaintiff until a decision had been made after consultation with, and upon the instructions of, the plaintiff. He contended that similar “decisions” were required of the other claimants on whose behalf the plaintiff’s solicitors appeared. He said that a need for these “decisions” gave rise to the “streamlining process” outlined above and that this was a lengthy process which caused or contributed to the delay in the delivery of statements of claim and in particular in relation to the delivery of the plaintiff’s of statement of claim.
It was not contended at any time on behalf of the plaintiff that the collection of evidence and the preparation of the case as to liability against the defendants was a cause of or contributory factor in the delay complained of in this case.
Conclusion
In this case there was a delay of four years and eleven months between the date of service of the plenary summons and the delivery of the statement of claim.
It is claimed that the plaintiff developed emphysema which was first diagnosed on or about December of 1994.
No evidence has been adduced as to precisely when the plaintiff became aware that her injury had a connection with the events complained of in these proceedings and no evidence has been adduced as to when she consulted her solicitors and instructed them to institute these proceedings. No explanation whatsoever has been provided by way of evidence, or otherwise, which would account for the period in excess of thirteen months between the date of issue of the plenary summons and the 19th February, 1999, when the solicitors on behalf of the third named defendants wrote to the plaintiff’s solicitors offering to collect the plaintiff’s “life medical records”.
An explanation has been offered on behalf of the plaintiff for the period between 3rd March, 1999, when the plaintiff’s solicitors accepted the offer on behalf of the defendant to collect medical records and 19th November, 2001, when the delivery of a statement of claim was demanded on behalf of the defendants.
I do not find the explanation offered to be a satisfactory one. Insofar as the plaintiff is concerned, it would appear that during this period of almost three years no tangible steps of any kind were made on behalf of the plaintiff to prosecute her claim. No evidence has been adduced of investigations or the collection of evidence as to liability and no claim is advanced that such activity caused or contributed in any way to the delay in the prosecution of the claim.
Although most of the plaintiffs copy medical records were delivered to the plaintiff’s solicitors between 30th May, 2000 and 12th September, 2000, (some 78 pages of medical records together with additional x-rays were delivered) the “particulars of personal injury” pleaded in the statement of claim do not reflect a history unique to, or characteristic, of the plaintiff. It comprises a four line plea in terms almost precisely identical to the pleadings delivered on behalf of the other claimants represented by the same solicitors. This fact is explicable because during the course of these proceedings, it was acknowledged on behalf of the parties that the claims made on behalf of each of the 138 claimants represented by the plaintiff’s solicitors have been couched in precisely identical terms in respect of liability and special damage and in virtually identical terms in respect of alleged personal injury
It is difficult to avoid the conclusion that virtually nothing was done to prosecute the plaintiff’s claim between March of 1999 and November of 2001. No evidence has been adduced indicating consultation with the plaintiff herself, or the collection of evidence of any kind on her behalf. No correspondence has been exhibited other than correspondence indicating that the plaintiff’s medical records were being collected by the defendants and that copies were being furnished to the plaintiff’s solicitors.
It follows that I find the explanations which have been offered on behalf of the plaintiff for the delay in prosecuting her claim between the date of issue of the plenary summons in December of 1997 and the dates in November of 2001 when the defendants sought delivery of a statement of claim to be unsatisfactory and insufficient to excuse such a period of delay.
It would appear that the demand by the defendants in November 2001 for the delivery of statements of claim from the plaintiff’s solicitors resulted in a sequence of events whereby the plaintiff’s solicitors sought instructions from the 138 claimants as to whether or not they wished to continue to prosecute their claims. However, this process does not appear to have commenced for a number of months and the statement of claim on behalf of the plaintiff was not delivered until 22nd and 26th November, 2002, which was some twelve months after its delivery had been demanded on behalf of the defendants and significantly after the issue of notices seeking the relief sought herein.
I find therefore that the explanation offered on behalf of the plaintiff to account for this additional twelve month delay is unsatisfactory and insufficient and that the defendants have accordingly discharged the onus of proving that no reasonable explanation or excuse exists which justifies any of the delay complained of.
It follows from all of the foregoing that I find that there has been both an inordinate and inexcusable delay on the part of the plaintiff in prosecuting her claim against the defendants in this case.
3. THE BALANCE OF JUSTICE.
Having found, as I have, that the delay by the plaintiff in prosecuting her claim has been both inordinate and inexcusable, it is now necessary to decide whether, on the facts, the balance of justice is in favour of or against the plaintiff’s case proceeding.
The determination of that issue requires consideration of the following:
(1) the conduct of the defendants since the commencement of the proceedings for the purpose of establishing, (a) whether any delay or conduct on the part of the defendant amounted to acquiescence in the plaintiff’s delay and (b) whether the defendants were guilty of any conduct which induced the plaintiff to incur further expense in pursuing the action,
(2) whether the delay was likely to cause, or has caused, serious prejudice to the defendants, (a) of a kind that made the provision of a fair trial impossible or, (b) of a kind that made it unfair to the defendant to allow the action to proceed and made it just to strike out the action and
(3) whether, having regard to the implied constitutional principle of basic fairness of procedures, the plaintiff’s claim against the defendants should be allowed to proceed or should be dismissed.
(1) The conduct of the defendants.
“…The Court .. (is) .. entitled to take into consideration and to have regard
to … any delay on the part of the defendant, because litigation .. (is) … a two party operation and the conduct of both parties should be looked at….”
(See Primor Plc. v. Stokes Kennedy Crowley and Anor. (Supra).
It is contended on behalf of the plaintiff that in this case there was delay on the part of the defendants in dealing with the plaintiff’s claim and that there was conduct on the part of the defendants which amounted to acquiescence in the plaintiff’s delay.
Mr. Cush S.C., on behalf of the plaintiff, argued that, whilst appearances were entered on behalf of the defendants before the end of January, 1999, the defendants’ solicitors entered into the collaborative process with the plaintiff’s solicitors, which commenced on 19th February, 1999, and did not conclude until November, 2001, (when the solicitors on behalf of the defendants demanded delivery of statements of claim). He contended that by initiating and participating in this collaborative process, the defendants also participated and acquiesced in the plaintiff’s delay and cannot now be seen to complain in respect of that delay.
On behalf of the defendants, it is argued that the law does not impose upon defendants the obligation to encourage the prosecution of claims initiated against them, whether by calling upon the claimant to proceed or in any other manner. It was argued that, by collecting the medical records of the persons who had initiated claims against them, the defendants were simply ensuring the preservation of evidence that was relevant to the defence of the claims and that this was done in the interests of the defendants and with the view to enabling them to defend the claims.
I accept the contention that, in general, there is no obligation upon a defendant to expedite the prosecution of the claim made against him or her.
The time within which pleadings must be delivered in claims of this kind are prescribed by the Rules of the Superior Courts, which provide procedures, also, for the extension of those time limits, where that is appropriate.
The obligations imposed upon defendants in such claims are also prescribed by the same Rules.
In the instant case, the plaintiff failed to deliver a statement of claim within the time limited by those Rules and has not sought or obtained from the court an extension of time within which to do so.
However, it is important to have regard to the following extract from the judgment of Ó Dálaigh C.J. in Dowd v. Kerry County Council [1970] I.R. 27 (at page 41):
“In weighing the extent of one party’s delay, the Court should not leave out of account the inactivity of the other party. The rules of court provide for actions being struck out for want of prosecution. There is the provision of Order 27 r. 1 and the provision of Order 108 r. 1, where there has been no proceeding for two years. The adage about sleeping dogs may be wise, but it is not specifically conceived to advance the cause of justice. In some instances it is acted upon by a defendant in the hope that he will ‘get by’ without having to face the peril of being decreed. Litigation is a two-party operation, and the conduct of both parties should be looked at.”
In Anglo Irish Beef Processors v. Montgomery [2002] 3 IR 510,the Supreme Court (Fennelly J.) having considered the foregoing passage observed:
“In my view, the defendants should not be lightly blamed for delay which is the fault of the plaintiff. In order to be weighed in the balance against him, it would have to amount in the particular circumstances to something ‘akin to acquiescence’ as indicated in the judgment of Henchy J., cited above.
The trial judge stated that there had been no suggestion that the defendants had dragged their feet or that motions had to be bought to extract pleadings from them. He went on to express the view that it was ‘understandable’ that the personal defendants “were content to let sleeping dogs lie rather than invite upon themselves litigation claiming damages which are now in excess of £2 million.” His conclusion was that this matter had to be taken into account but that he “attached only little weight to it”. This approach was, in my view, perfectly correct.”
Mr. Cush S.C. argues that by collaborating with the plaintiff’s solicitors in the collection of medical records the defendants acquiesced in the delay on the part of the plaintiff.
It is, of course, correct to say that there was a very substantial period of time between the date upon which appearances were entered on behalf of the defendant and the date upon which the statement of claim was delivered. It is also true to say that the defendants, for a substantial period of time, took no steps to require that the plaintiff should deliver a statement of claim. However, the defendants have at no time been in default in taking any steps or delivering pleading prescribed by the Rules of the Superior Courts and, as I have indicated earlier, the law does not, generally speaking, require defendants to expedite the prosecution of a claim against them.
There is no suggestion in this case of any attempt on the part of defendants to endorse or encourage delay whether implicitly or otherwise and certainly between November 2001 and November 2002 the plaintiff could scarcely have been under the impression that the defendants were acquiescing in delay having regard to the demands made for the delivery of a statement of claim and the subsequent issue of notices of intention to proceed and the notices seeking the relief sought herein.
Mr. Cush S.C. further contends that the defendants’ initiation of and participation in the collection of medical records by the defendants comprised “countervailing circumstances” within the meaning ascribed to that term by Henchy J. in O’Domhnaill v. Merrick [1984] I.R. 151.
It cannot be argued that in this case there has been “…conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action” of the kind contemplated by the House of Lords in Roebuck v. Mungovin [1994] 2 A C. 224.
In Primor, the defendant participated in a discovery process which required the plaintiff to embark on what O’Hanlon J. referred to as the “mammoth task” of discovering countless thousands of documents.
O’Hanlon J. was of the view that this participation, together with the defendant’s lengthy delay in delivering its defence, was fatal to the defendant’s claim to have the matter dismissed.
The Supreme Court concluded that this factor was relevant to the exercise of the discretion to dismiss for want of prosecution but was not fatal to such a claim.
In the instant case, there was no conduct on the part of the defendants which induced the plaintiff to embark on any particular task thereby causing a delay in the prosecution of the case. Neither was there any delay on the part of the defendant in delivering any particular pleading or taking any particular step in the proceedings.
I take the view that, in exercising the discretion which must be exercised in this case, I must take into account the fact that the defendant participated in the process of collecting medical records and sending copies to the plaintiff’s solicitors and I must have regard to the argument advanced on behalf of the plaintiff that this amounted to a degree of “acquiescence” on the part of the defendants.
Even if weight were to be attached by this court to the defendants participation in the collection of medical records and to their failure to demand delivery of a statement of claim, and I do not necessarily believe that it should, it is undeniable that, with effect from November 2001, the defendants did vigorously demand delivery of pleadings without success for a further period of twelve months.
Furthermore, I am bound to say that I do not consider that the defendants’ participation in the collection of medical reports can, in the circumstances of this case, be deemed to amount to “countervailing circumstances” of the kind which would alone tilt the “balance of justice” sufficiently to require the exercise of discretion in favour of refusing the relief sought.
Prejudice.
It is submitted on behalf of the plaintiff that no prejudice has been shown by the defendants which requires, in the interest of justice, that the plaintiff’s claim should be dismissed.
Mr. Cush S.C. contends that the delay of itself, however inordinate and however inexcusable, does not necessarily give rise to prejudice and does not therefore automatically justify dismissal of the proceedings.
The defendants point to evidence of prejudice, including averments indicating that at least one witness who is now deceased would have been relevant and of assistance to the defendants in conducting their defence. However, that witness has not been identified nor has the nature of the evidence which would have been adduced by him or her.
It is correct to say that no concrete evidence has been adduced on behalf of the defendants identifying specific prejudice which the defendants or any of them will suffer by reason of the delay on the part of the plaintiff in prosecuting her claim.
On the overall issue of alleged negligence in the manufacture and distribution of tobacco products, there is, prima facie, no reason for this Court to conclude that the plaintiff’s delay has caused the defendants explicit or precise prejudice in their capacity to defend themselves to any greater extent than would have been the case on the date when the plaintiff’s claim was first initiated.
However, on the issue of causation in respect of the Plaintiff’s injury and on her claim for damages, the same cannot necessarily be said.
. In Primor, it was accepted by the Supreme Court (O’Flaherty J.) that “…once delay which is inordinate and inexcusable is established then the matter of prejudice seems to follow almost inexorably …”.
In Bliss v. Lambeth Health Authority [1978] 1 D.P.P. 382 Lord Denning M.R. discussed “the nature of the prejudice regarded as necessary to be shown …” in cases such as this.
In the course of his judgment, he quoted from his own judgment in Sweeney v. Sir Robert McAlpine & Sons Ltd. [1974] 1 W.L.R. 200, where he observed that:
“The court does not look merely at the delay since the writ…The court enquires whether the total delay has been such that a fair trial between the parties cannot now be had.”
He then referred to a passage from his judgment in Thorpe v. Alexander Fork Lift Trucks Ltd. [1975] 1 W.L.R. 1459, where he stated:
“The plaintiff is not entitled to delay as of right for four years from the accident, three years before using the writ and another year for service. He has no such right. He is not entitled to delay at al. It is his duty once the writ is issued to serve it promptly and get on with it promptly…the delay of nine months was properly admitted to be inordinate and inexcusable…. It is a serious prejudice to the hospital to have the action hanging over its head even for that time. On this simple ground I think this action should be dismissed for want of prosecution.”
In the same case Lane L.J., dealing with the same issue of prejudice, declared “The defendant meanwhile must spend time and money on preparing for trial. In these circumstances it is incumbent on the plaintiff to prosecute the action with diligence. If he fails to conform with the rules of court as to the various steps in the action and is guilty of serious and inexcusable delay, the court should have and I believe has, the power in its discretion to dismiss the action for want of prosecution. It would not be necessary for the defendant to approve any additional post-writ prejudice. Such prejudice should in these circumstances be presumed.”
Both of the above passages were referred to with approval by Hamilton C.J. in Primor.
This court is concerned to determine whether the balance of justice is in favour of or against the plaintiff’s case proceeding, having regard inter alia, to the implied constitutional principles of basic fairness of procedures.
In this case, what is striking is the absence of evidence of activity on behalf of the plaintiff in prosecuting her claim.
No evidence has been adduced indicating ongoing or any consultation between the plaintiff and her solicitors relative to her claims and medical history. No evidence has been adduced indicating the collection of evidence, either in respect of liability, or in respect of the plaintiff’s medical history and its alleged connection with alleged wrongdoing on the part of the defendants.
No evidence has been adduced indicating, or suggesting the instruction, on behalf of the plaintiff, of expert witnesses for the purpose of advising the plaintiff (and/or other claimants) on medical, scientific or other matters.
No evidence has been adduced on behalf of the plaintiff indicating (or suggesting), that any additional steps may have been required or taken on behalf of the plaintiff (or other claimants) when copies of medical records were made available to the plaintiff’s solicitors.
Perusal of the correspondence exhibited in support of the evidence suggests that the plaintiff’s solicitors, at one point, having belatedly reacted to pressure exerted upon them by the defendants solicitors, then had difficulty contacting their various clients for the purpose of obtaining instructions as to whether or not they wished to continue to prosecute their various claims against the defendants.
The only evidence of activity on the part of the plaintiff’s solicitors throughout the four year and eleven month period between the date of the issue of the plenary summons and the delivery of a statement of claim was (a) the receipt of copies of the plaintiff’s medical history collected by the defendant solicitors and (b) the delivery of a statement of claim which had apparently been prepared in stereotype or “copperplate” form for delivery on behalf of the each one of the 138 claimants on whose behalf the plaintiff’s solicitors appeared.
The evidence which has been adduced therefore supports the contention of the defendants that the plaintiffs claim has not been substantially advanced from the point when these proceedings were initiated in December of 1997.
Reference has been made, in the evidence adduced on behalf of the plaintiff to the fact that the defendants comprise well resourced commercial corporate bodies. This fact, which is not in dispute, might have a relevance to the issue of delay if the plaintiff, hindered by lack of resources, had taken an inordinately lengthy period of time collecting evidence and would have a particular relevance if the defendants had overtly or otherwise used their resources in a manner likely (even inadvertently), to hinder or damage the plaintiffs attempt to prosecute her claim.
In this case, however, there is no suggestion of a lack of resources on the part of the plaintiff or that the defendants sought to use their resources to disadvantage the plaintiff in any respect.
As O’Flaherty J. pointed out in Primor (at page 516):
“…courts do not exist for the sake of discipline but rather to deal with the essential justice of the case before them. It is only proper that regard should always be had to the rules of court but it must be remembered that the rules are there to help in the administration of justice.”
However, a defendant, faced with a claim, is entitled to be provided with full details of the wrong alleged and the full nature and extent of the injury and loss allegedly sustained, so that the validity of the claim and the extent of the damages sought can be assessed. This must be done within a reasonable time. Thereafter a defendant is entitled to the trial with reasonable expedition.
In this case, the claim was made more than six years ago. It related to an injury allegedly sustained during a period of over 50 years prior to the institution of proceedings.
More than four years after the issue of proceedings, the only detail, if such it be, provided to the defendants indicating the nature and the extent of the plaintiff’s claim against them, was an indorsement of claim on a plenary summons.
Only after the issue and service of the notices seeking to dismiss the plaintiff’s claims, was a statement of claim, in general terms, and in “copperplate” form, finally delivered on behalf of the plaintiff.
The delivery of that document has not, particularly in relation to causation, substantially advanced the plaintiff’s claim from the point when those proceedings were initiated in 1997.
The defendants have co-operated with the plaintiff in the matter of collection of medical reports and have incurred the expense of investigating this claim over a period of six years.
It is inescapable that they have suffered the type of prejudice identified in the many authorities cited, which follows inexorably with the passage of time of the kind which has occurred in this case.
Furthermore no evidence has been adduced, even at this late stage, which would give rise to the hope that the defendants can, in the short, or even in the medium term, expect to receive from the plaintiff pleadings which will adequately identify the claim which is to be advanced against them.
I am accordingly satisfied that the prejudice to which the defendants have been subjected has now been so exacerbated by the plaintiff’s extraordinary delay that the interests of justice require that her claim against the defendants should be dismissed for want of prosecution and I so hold.
Manning v Benson and Hedges Ltd [2004] 3 I.R. 556
JUDGMENT OF Ms. Justice Finlay Geoghegan delivered on the 30th day of July, 2004.
PRELIMINARY
This judgment is given in relation to three applications brought by the defendants in each of the above proceedings against the plaintiff named. The applications were heard simultaneously. Each of defendants was separately represented. The plaintiffs were jointly represented. In certain of the proceedings there are additional plaintiffs and these judgments only apply to the applications against the plaintiffs named.
Plaintiffs’ claims
The primary claim of each plaintiff is a claim for damages for injury allegedly suffered by reason of alleged negligence and breach of duty of the relevant defendant. In two cases the injury alleged is emphysema and in one lung cancer. Each of the claims are similarly pleaded. Each essentially alleges that by reason of alleged wrongful acts of the relevant defendant the plaintiff commenced smoking; became addicted; continued to smoke and by reason of smoking has contracted the relevant disease or illness. Ms. Manning is alleged to have commenced smoking in 1948 and to have been diagnosed with emphysema in 1995. Ms. Garland is stated to have commenced smoking in 1942 or 1945 and to have been diagnosed with emphysema in August 1997. Ms. McNevin is alleged to have commenced smoking in 1968 and to have been diagnosed with lung cancer in November 1995.
Assumption for these applications
Defences have not been delivered in any of the claims. The Statute of Limitations has not been raised against the plaintiffs. These applications must be considered upon the basis that the claims as made are not statute barred. In each case the plenary summons was issued within three years of the date of diagnosis as pleaded. It is appropriate that the court should consider each application in the most favourable way to the plaintiff. Accordingly, it is assumed for the purposes of this application that each of the claims made is not statute barred. This appears to require an assumption that the date of diagnosis in respect of each of the plaintiffs is either the date of completion of the tort or torts alleged or the date of knowledge within the meaning of the Statute of Limitations (Amendment) Act, 1991. For reasons which should be apparent later in this judgment the former is probably the more favourable position to the plaintiffs and therefore I have assumed for the purposes of these applications that the tort or torts alleged only became complete and the plaintiffs’ respective causes of action against the defendants accrued on the date of diagnosis pleaded. In making this assumption I am not making any finding to that effect.
Defendants’ applications
Each defendant seeks an order pursuant to the inherent jurisdiction of the court that the plaintiff’s claim be dismissed. Whilst the three notices of motion grounding these applications set out in varying terms the grounds upon which the application is brought the grounds pursued by all the defendants may be summarised as follows:-
(1) That the plaintiffs’ claims be dismissed for want of prosecution on the grounds of inordinate and inexcusable delay on the part of the plaintiffs in the commencement and prosecution of the proceedings which delay has prejudiced the defendants such that the balance of justice requires that the claims be dismissed.
(2) That the plaintiffs’ claims be dismissed in the interests of justice in defence of the defendants’ rights under the Constitution including the right to fair procedures and a fair trial.
(3) That the plaintiffs’ claims be dismissed as it would be contrary to the defendants’ rights to a trial within a reasonable time under Article 6 of the European Convention for the Protection of Fundamental Freedoms and Human Rights (“ECHR”) to require the defendants to defend themselves against the plaintiffs’ claims.
Insofar as is necessary I propose considering the applicable law in relation to each of the above grounds.
Applicable Law
Want of Prosecution
The law applicable to the claim to dismiss on grounds of want of prosecution is as stated by the Supreme Court in Primor Plc. v. Stokes Kennedy Crowley and Ors. [1996] 2 I.R. 459. As there was some dispute in submissions between the parties as to precisely what was determined by that case and its application to the facts of the present applications it is necessary to set out the principles as determined by the Supreme Court in that case. The judgment of the majority was given by Hamilton C.J. and in his judgment at p. 475 set out the following applicable principles:-
(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 part 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.
In relation to the application of the above principles to the defendants’ applications for an order dismissing the plaintiffs’ claims for want of prosecution there appear to be only two issues in dispute between the parties:-
(1) Should the court consider any delay by the plaintiff in the period between the date of the alleged wrongful acts or accrual of the cause of action and date of commencement of the proceedings; and
(2) In considering the balance of justice issues what period of delay is relevant to the issue of prejudice to the defendant or risk that it is not possible to have a fair trial.
On the first issue counsel for the plaintiffs submitted that the court should only look at delay after the commencement of the proceedings. It was accepted that where there has been a delay subsequent to the accrual of the cause of action but before commencement of proceedings that in accordance with the decision in Primor Plc. v. Stokes Kennedy Crowley the court will look more critically at any delay after issue of the proceedings. However, it was submitted that in considering an application to dismiss for “want of prosecution” it was only any delay in the prosecution of the proceedings i.e. after issue that should be considered.
In Primor Plc. v. Stokes Kennedy Crowley, Hamilton C.J. (in relation to the appeal by Freaneys) considered the period between the accrual of the cause of action and the issue of the plenary the summons and concluded at p. 489:
“I am not satisfied that there was inordinate delay by plaintiffs in the issue of the plenary summons on the 21st December, 1984, but having regard to the fact that the alleged acts of negligence on the part of Freaneys relate back to acts alleged to have occurred in 1978, nearly six years earlier, there was a duty on the part of the plaintiff to proceed with reasonable expedition.
In the circumstances, the delay in the service of the plenary summons and statement of claim was inordinate and inexcusable and I would dismiss the plaintiff’s appeal on this ground.”
The case O’Domhnaill v. Merrick [1984] I.R. 151 was also an application to strike out for want of prosecution. The plaintiff’s claim was for personal injuries. The plaintiff at the date of the accrual of the cause of action had been an infant. The plenary summons was issued 16 years after the accident but within the limitation period following the decision in O’Brien v. Keogh [1972] I.R. 144.
On the facts of that case, Henchy J. (who delivered the majority judgment of the Supreme Court in relation to the question of delay) concluded at p. 156:
“The recital I have given in the course taken by the plaintiff’s claim for damages, from the happening of the accident in 1961 up to the hearing of this appeal in May, 1984, gives a picture of considerable delay on the plaintiff’s side of the case. Making all due allowances, I find that delay inordinate and inexcusable.”
In each of the above cases, the Court considered the period between the accrual of cause of action and issue of the plenary summons.
Accordingly, it appears to me that the Supreme Court has determined that in considering an application to dismiss for want of prosecution, the court should, in general, consider the period starting with the accrual of the cause of action for the purpose of determining whether there has been a delay by the plaintiff. I say “in general” as neither of the above cases concerned a personal injuries claim with a “date of knowledge” within the meaning of s. 3 of the Statute of Limitations (Amendment) Act, 2000 which was later than the date of accrual of the cause of action. In such a case it may be that court should only consider the period from the date of knowledge.
The second issue relates to the period during which the court should consider whether or not prejudice has been caused to the defendants or during which they have been put at risk of an unfair trial. Counsel on behalf of the plaintiffs submitted that the court should only consider the period of delay found to be inordinate and inexcusable. It is of particular relevance to the facts of these cases by reason of the lapse of time between the dates of the first alleged wrongful acts and the dates of diagnosis being the assumed dates of accrual of the causes of action for the purposes of these applications.
Counsel for the defendants submit that when the court comes to consider the balance of justice even following a finding of inordinate and inexcusable delay that the court must consider the entire period between the dates of the alleged wrongful acts and the probable date of trial and consider whether, by reason of such periods, prejudice has been caused to the defendants for a substantial risk that it is not possible to have a fair trial.
I cannot accept this submission where the application to dismiss is grounded upon an alleged want of prosecution.
In considering the decisions of the Supreme Court in Primor Plc. v. Stokes Kennedy Crowley and the other decisions referred to therein, I am satisfied that the submission of counsel for the plaintiffs is well founded. Where the application to dismiss is based upon a want of prosecution on grounds of inordinate and inexcusable delay it appears that it inexorably follows that the court must consider whether the delay so found by it has caused serious prejudice to the defendant or gives rise to a substantial risk that it is not possible to have a fair trial. This is the approach taken by Hamilton C.J. in Primor Plc v Stokes Kennedy Crowley at par. (d)(vi) of the principles cited above. It was also the approach applied by Hamilton C.J. to the facts of those appeals. In relation to the Stokes Kennedy Crowley appeal he concluded at p. 494:
“I am satisfied, from a consideration of all the authorities, that the prejudice caused to a defendant by inordinate and inexcusable delay on
the part of the plaintiff is a fundamental ingredient which may and should be taken into account on an application to dismiss proceedings for want of prosecution and that if the prejudice is such that a fair trial between the parties cannot now be held, then the proceedings should be dismissed and the defendant should not be further prejudiced by the delay that would inevitably be caused by a long and difficult hearing of the action and the possibility of an appeal from the decision of the High Court therein.”
In none of the cases, dealing with applications to dismiss for want of prosecution, was there a significant lapse of time between the alleged wrongful acts and the alleged accrual of the cause of action. I accept that the courts have not specifically addressed the issue in the factual context in which I am now asked to do so. However it appears to me that it is consistent with the above principles and also logical that where the application to dismiss is for “want of prosecution” that the court cannot in considering the prejudice caused by delay take into account any period prior to the accrual of the cause of action. Until the cause of action accrues the plaintiff, normally, cannot commence proceedings. Hence even if as I have concluded the obligation to prosecute includes the obligation to commence proceedings there cannot be any question of delay until the entitlement to commence i.e. the accrual of cause of action occurs.
Another way of looking at the issue is to consider what would have been the position if subsequent to the date of diagnosis of each of the plaintiffs they had proceeded with alacrity to commence proceedings and prosecuted the proceedings within the time limits in the Rules. If that had been done the defendants could not have applied for an order to dismiss for want of prosecution notwithstanding the long lapse of time between the first occurrence of the alleged wrongful acts and the date of accrual of the cause of action.
It follows from this conclusion that in considering the application to dismiss for want of prosecution the court should not consider prejudice caused to the defendants or the risk that it is not possible to have a fair trial by reason of lapse of time between the alleged wrongful acts and accrual of cause of action. The fact that there was such a lapse of time may however be relevant when considering the relevant factors to the balance of justice issues. The Courts should not ignore the fact that the alleged wrongful acts took place a long time ago. At minimum where there is a long lapse of time between wrongful acts and accrual of a cause of action it may mean that the claim is already difficult for the defendant to deal with and prejudice caused by subsequent delay may have to be more critically examined. Also, such a long lapse of time places an special onus on a plaintiff to proceed with due expedition after the accrual of the cause of action.
Dismiss in the interests of Justice
The second and separate ground upon which the defendants seek an order dismissing each of the plaintiff’s claims at this stage is that it would be in breach of the defendant’s rights under the Constitution, including the right to a fair trial and to fair procedures to permit the claims to proceed.
Counsel for the defendants submit that it is now well recognised that the Courts have an inherent jurisdiction to dismiss a claim where by reason of a lapse of time between the alleged wrongful acts and the probable date of trial either a fair trial cannot be conducted by the court or it would be in breach of a defendant’s rights to fair procedures to require him to defend the claim.
In considering this submission I use the phrase “lapse of time” to indicate a period during which the court either assumes or holds that there has been no delay, in the sense of culpable delay, by or on behalf of the plaintiff. Insofar as I use the word “delay” I do so to describe a period during which the plaintiff could have taken steps to commence or prosecute proceedings (i.e. a period after the accrual of the cause of action) but did not do so.
Counsel for the defendants submit that the inherent jurisdiction contended for derives principally from Article 34 of the Constitution. Article 34.1 provides:
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution …”
Reliance is also placed on the nature of the administration of justice which it was submitted may be derived from Article 34.3.1 of the Constitution which provides for a High Court which is to be “invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal”. The constitutional guarantee of fair procedures derived from Article 40.3 was also relied upon.
I accept that the courts have recognised the existence of a jurisdiction to dismiss a claim by reason of a lapse of time without there being any delay in the sense of culpable delay by a plaintiff and where the requirements of what are variously described as “the interest of justice” or the prevention of “patent unfairness” or the requirements of “Constitutional principles of fairness of procedure” or the risk of putting “justice to the hazard” so require.
Toal v Duignan & Others (No. 1) [1991] ILRM 135 was a case where the Supreme Court exercised such a jurisdiction. The plaintiff’s claim (in part) was for damages for an injury allegedly suffered at birth. Approximately 25 years had passed since that time. The plaintiff was considered to be blameless for the period which had elapsed. Finlay C.J. (with Henchy J. and Hederman J.) delivering the unanimous judgment of the Court on several defendants’ applications to dismiss stated at p. 139:
“In the High Court it was held by Keane J. that the case was governed by the decision of this Court in O’Domhnaill v Merrick [1984] IR 151. I am in agreement with that view of the law. It is unnecessary for me to repeat here the principles laid down by this Court in that case, but they may be summarised in their application to the present appeal as being that where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the acts complained of and the trial, then if that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action”.
O’Domhnaill v Merrick [1984] IR 151 was however, a claim to dismiss for want of prosecution. The plaintiff in that case was found to have been in delay and the delay to be inordinate and inexcusable. It was in considering whether there were countervailing circumstances which would justify a disregard of the delay that Henchy J. referred to the principles which appear to have been subsequently relied upon in Toal v. Duignan & Others (No. 1) as set out above. In O’Domhnaill v. Merrick Henchy J. at pp. 157-158 stated:
“After due regard to all relevant factors, I am driven to the conclusion that not only was the delay in this case inordinate and inexcusable but there are no countervailing circumstances which would justify a disregard of that delay. I consider that it would be contrary to natural justice and an abuse of the process of the Courts if the defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial, and a claim for damages of which she first learned 16 years after the accident. . . .
While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basis fairness to allow the case to proceed to trial.”
In O’Domhnaill v Merrick, McCarthy J. delivered a dissenting judgment. In Toal v. Duignan a subsequent application was made by a number of other defendants. The appeal in that matter came on before a differently composed Supreme Court to that which decided Toal v. Duignan (No. 1). The latter Court comprised Finlay C.J., Griffin J. and McCarthy J. In that appeal Toal v. Duignan (No. 2) [1991] ILRM 140 Finlay C.J. and Griffin J. upheld the inherent jurisdiction relied upon in the previous appeal. Finlay C.J. at p. 142 stated:
“In the course of the argument on these appeals a question was raised as to whether the court had jurisdiction to dismiss by reason of delay an action which was in fact commenced within a time limit fixed by Act of the Oireachtas.
My judgment in the previous appeal in respect of the other defendants in this case was based on an acceptance of the principles laid down in the judgment of Henchy J. in O’Domhnaill v. Merrick [1984] IR 151, with which Griffin J. agreed.
I have carefully reconsidered the principles laid down in that judgment on the question as to the jurisdiction of this Court in the interests of justice to dismiss a claim where the length of time which has elapsed between the events out of which it arises and the time when it comes for hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself or herself against the claim made. I have also reconsidered the dissent from the view expressed by McCarthy J. in the judgment delivered by him in O’Domhnaill v. Merrick.
I adhere to the view expressed by me in the previous appeal in this case that the court has got such an inherent jurisdiction. It seems to me that to conclude otherwise is to give to the Oireachtas a supremacy over the courts which is inconsistent with the Constitution.”
Whilst Finlay C.J. refers to dismiss “by reason of delay” it is clear on the facts of the case that delay is being used in a way which did not connote any culpability on the part of the plaintiff and in the sense I am using “lapse of time”.
Griffin J. in Toal V. Duignan & Others (No. 2) [1991] ILRM 140 at p. 149 expressed himself to be in complete agreement with the conclusion of the Chief Justice as set out above and his reasons. McCarthy J. dissented. He stated that he recognised, notwithstanding his dissent in O’Domhnaill’s case, (and subject to any future review by a full Court) that the weight of judicial opinion was in favour of the jurisdiction of the Court to dismiss an action brought and maintained within the statutory limitation period but then expressed the view that without the culpable delay that existed in O’Domhnaill’s case such jurisdiction may not be exercised so as to dismiss the claim of a non-culpable plaintiff.
From the above analysis of the two decisions in Toal v. Duignan, I have concluded that the Supreme Court has determined that such an inherent jurisdiction exists even in the absence of culpable delay and I am bound by such decisions.
Hardiman J. in J.O’C. v. Director of Public Prosecutions [2000] 3 IR 478 in considering the effect of lapse of time on the fairness of trials referred to the above cases and a number of other decisions and then stated at pp. 499-500:
“Examples of the application of these principles in civil cases can be multiplied. Enough, however, has been said to indicate that it has consistently been held:-
(a) that a lengthy lapse of time between an event giving rise to litigation, and a trial creates a risk of injustice: “the chances of the courts being able to find out what really happened are progressively reduced as time goes on”;
(b) that the lapse of time may be so great as to deprive the party against whom an allegation is made of his “capacity . . . to be effectively heard”;
(c) that such lapse of time may be so great as it would be “contrary to natural justice and an abuse of the process of the court if the defendant had to face a trial 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.”
J.O’C v. D.P.P. was an application for an order of prohibition of a criminal trial. The judgment of Hardiman J. was a dissenting judgment. Notwithstanding, the above whilst not necessarily binding on me, is a helpful summary of the earlier cases and assists in identifying principles which should apply when exercising the inherent jurisdiction for which the defendants contend.
The decision of Kelly J. in Kelly v. O’Leary [2001] 2 IR 526 is also of assistance in attempting to analyse the principles according to which the court should exercise such inherent jurisdiction. That was an application to dismiss for want of prosecution. There was a very long delay between the accrual of the cause of action and commencement of the proceedings which Kelly J. found to be inordinate and inexcusable. He referred to the possibility of there being two different tests in a claim to dismiss for want of prosecution and a claim to dismiss in the interests of justice by reason of significant lapse of time but left that question open. He determined the application by applying the principles in Primor plc. v. Stokes Kennedy Crowley [1996] 2 IR 459 in relation to dismiss for want of prosecution referred to above. However in considering the balance of justice question as proposed by the Supreme Court he ultimately reached his conclusion by answering the same two fundamental questions which appear to be raised by the judgments of the Supreme Court in Toal v. Duignan (No. 1), Toal v. Duignan (No. 2) and O’Domhnaill v. Merrick. These are:
1. Is there, by reason of the lapse of time (or delay) a real and serious risk of an unfair trial; and
2. Is there by reason of the lapse of time (or delay) a clear and patent unfairness in asking the defendant to defend the action.
The constitutional requirement that the courts administer justice requires that the courts be capable of conducting a fair trial. This, as was submitted, is required by Article 34 of the Constitution. Accordingly, if a defendant can on the facts establish that having regard to a lapse of time for which he is not to blame there is a real and serious risk of an unfair trial then he may be entitled to an order to dismiss.
Also, if a defendant can establish that a lapse of time for which he is not to blame is such that there is a clear and patent unfairness in asking him now to defend the claim then he may also be entitled to an order to dismiss. This entitlement derives principally from the constitutional guarantee to fair procedures in Article 40.3 of the Constitution.
Whilst in some of the cases the judgments have referred to matters under both these headings they appear to be potentially separate grounds upon which the inherent jurisdiction to dismiss may be exercised.
The factor to be considered by the court in relation to each question may overlap. It appears to me that these may include:-
1. Has the defendant contributed to the lapse of time.
2. The nature of the claims.
3. The probable issues to be determined by the court; in particular whether there will be factual issues to be determined or only legal issues.
4. The nature of the principal evidence; in particular whether there will be oral evidence.
5. The availability of relevant witnesses.
6. The length of lapse of time and in particular the length of time between the acts or omissions in relation to which the court will be asked to make factual determinations and probable trial date.
Further, on the second question it will be relevant to consider any actual prejudice to the defendant in attempting to defend the claim by reason of the lapse of time.
Breach of Article 6 of ECHR
It was agreed in the course of the hearing that I should only consider the defendants’ applications based on Article 6 of the ECHR in the event that it became necessary. By reason of the conclusion I have reached on each of the above grounds I do not propose considering the applicable law to this ground.
Conclusions
I have considered and reached a conclusion on each of the defendants’ applications under each of the first two grounds, want of prosecution and dismiss in the interest of justice. I have done this as the defendants differed in their approach as to the primary ground relied upon. Also, by reason of the extensive submissions made it appeared appropriate that I should do so to avoid the expense of a further application in the High Court in the event that I was considered to be wrong in my conclusion as to the applicable law or its application to the facts of these applications on either ground.
Want of prosecution
Delay
The relevant dates in each claim are as follows.
Ms. Manning:
Assumed accrual of cause of action May, 1995
Issue of plenary summons 25th May, 1998
Service of plenary summons 28th April, 1999
Entry of appearance 29th April, 1999
Correspondence from Arthur Cox calling for statement of claims/threatening motion to dismiss: 26th November, 2001, 10th December, 2001, 25th January, 2002, 18th April, 2002, 26th July, 2002 and 17th October, 2002.
First motion to dismiss issued 21st August, 2002
(return date 19th November, 2002).
Delivery of statement of claim 18th November, 2002.
First notice for particulars 23rd January, 2003.
Order compelling plaintiff to furnish replies to particulars
28th April, 2003
Plaintiffs replies to notice of particulars 16th June, 2003
Second notice of particulars 2nd September, 2003
Plaintiffs replies to second notice for particulars 11th February, 2004
Issue of second motion to dismiss 3rd March, 2004
Issue of plaintiff’s motion for judgment in default of defence 11th March, 2004
Ms. Garland
Assumed accrual of cause of action August, 1997
Issue of plenary summons 20th July, 2000.
Service of plenary summons 12th June, 2001.
Entry of appearance 14th June, 2001.
Correspondence from McCann FitzGerald calling for statement of claim/threatening motion to dismiss 19th November, 2001, 1st February, 2002, 10th April, 2002.
Delivery of statement of claim 22nd November, 2002.
First notice for particulars 20th December, 2002
Plaintiff’s reply to particulars 19th December, 2003.
Plaintiff’s motion for judgment in default of default of defence issued 22nd January, 2004 (Returnable 9th February 2004)
Second notice for particulars 29th January, 2004.
Plaintiffs replies to particulars 9th February, 2004.
Motion to dismiss issued 27th February, 2004.
Ms. McNevin
Assumed accrual of cause of action November, 1995
Issue of summons 29th October, 1998
Service of summons 29th September, 1999
Entry of appearance 6th October, 1999
Correspondence seeking statement of claim/threatening motion to dismiss 10th December, 2001, 11th January, 2002, 21st January, 2002, 13th February, 2002.
First motion to dismiss 31st May, 2002.
Order of Master extending time by three weeks 9th July, 2002.
Second motion to dismiss issued 24th September, 2002 (not served).
Delivery of statement of claim 25th September, 2002.
First notice for particulars 3rd December, 2002.
Replies to particulars 22nd December, 2003.
Plaintiff’s motion for judgment in default of defence issued 22nd January, 2004.
Second notice for particulars 29th January, 2004.
Replies to particulars 9th February, 2004.
Third motion to dismiss issued 24th February, 2004.
The relevant periods for the purpose of considering the allegation that there has been inordinate delay in respect of each of the plaintiffs are:
Ms. Manning
Period between accrual of cause of action and issue of summons – almost three years.
Period between issue and service of summons – eleven months.
Period between appearance and delivery of statement of claim – three years and seven months
Period between first notice for particulars and replies (alleged to be incomplete) – six months
Ms. Garland
Period between accrual of cause of action and issue of summons – two years eleven months.
Period between issue and service of summons – almost eleven months
Period between appearance and delivery of statement of claim – one year and five months
Period between first notice for particulars and replies (alleged to be incomplete) – one year.
Ms. McNevin
Period between accrual of cause of action and issue of summons – two years and eleven months.
Period between issue and service of summons – eleven months.
Period between appearance and delivery of statement of claim – two years and eleven months
Period between first notice for particulars and replies (alleged to be incomplete) – 19 days.
Considering the nature of the claims made by the plaintiffs and even assuming to their benefit that the claims are complex claims to prepare and plead the delays subsequent to the accrual of the cause of action both in the commencement and subsequent pursuit of the proceedings must be considered to be inordinate.
I am reinforced in the conclusion I have reached by the fact that Quirke J. in Eileen O’Connor v. John Player & Sons Limited and Ors. (The High Court, Unreported 12th March, 2004) in relation to similar claims with similar periods reached the same conclusion.
Inexcusable
While counsel for the plaintiffs made no concession in relation to the delays being inexcusable, he did not seek to reopen all the issues under this heading determined by Quirke J. in his judgment in O’Connor v. John Player & Sons and Ors. relating to the arrangements for the collection of medical records. I have considered carefully Mr. Ward’s affidavits, the correspondence referred to, the affidavits sworn by the solicitors for the defendants and the correspondence referred to therein. The furthest the matter can be put from the plaintiffs perspective is that there may have been a misunderstanding by the plaintiff’s solicitors during some period as to whether they were obliged to deliver a statement of claim without the full medical records of the relevant plaintiff having been collected. The relative inactivity of the defendant’s solicitors in seeking a statement of claim in Ms. Manning’s and Ms. McNevin’s cases during 2000 and first part of 2001 may have contributed to any such misunderstanding. However, even if such a misunderstanding did occur, such misunderstanding must have come to an end when the defendants’ solicitors in each of these cases wrote the first letter calling for the delivery of a statement of claim in November/December, 2001. Even if I were to accept that the arrangements in relation to medical records offered an excuse for the period between the entry of appearance and the first letter calling on the plaintiff to deliver a statement of claim it does not appear that such acceptance could prevent the conclusion that the balance of the delays between the accruals of the causes of actions and the point in each proceeding reached by the date of issue of the current motions is both inordinate and inexcusable.
Given the nature of the claims and the fact that they include alleged wrongful acts stated to have happened many decades ago the plaintiffs were under a particular duty to proceed with due expedition following the accrual of the cause of action. Taking that into account and the difficult nature of the claims being brought it appears to me that it would have been reasonable for the plaintiffs to have reached the present stage in the proceedings i.e. replies to particulars raised on the statement of claim within a maximum period of two years (cause of action to issue and service one year; appearance and statement of claim six months; particulars and replies 6 months). Even assuming in Ms. Manning’s and Ms. McNevin’s cases further periods of two years and one and a half years respectively may be excusable the minimum periods of delay in each of the claims of the date of hearing of these applications to dismiss were approximately in Ms. Manning and Ms. McNevin claims five years and Ms. Garland claim four and a half years.
Whilst Mr. Ward has referred in his grounding affidavits to the streamlining process which took place counsel for the plaintiffs did not pursue this as an excuse before me.
Each of the defendants relied specifically and in my view with justification upon the absence of any explanation whatsoever for the delay in the issue of proceedings. No plaintiff has sworn an affidavit. There is absolutely no explanation as to why in each case no proceedings were not issued until almost three years after the date of diagnosis relied upon nor indeed why the summons was not served in each case for approximately eleven months.
Balance of justice
For the reasons set out above in this judgment in considering the issues to which this court is directed by the judgment of Hamilton C.J. in Primor Plc v. Stokes Kennedy Crowley under the heading of balance of justice in an application to dismiss for want of prosecution the court is confined to considering the impact of delay since the accrual of the causes of action.
On behalf of the defendants it was submitted that even if the court is confined to considering delay since the accrual of the cause of action that the court must consider such delay and the prejudice caused by such delay both in the context of the nature of the claims and the progress made to date in the proceedings. I accept that submission.
A consideration of the statements of claim and replies to the notices for particulars in each of the proceedings makes it clear that the claims being advanced by each of the plaintiffs are extremely wide ranging. The wrongful acts alleged go back to the start by each defendant of the sale/distribution/manufacturer of cigarettes in Ireland which appears to have been in the early twentieth century. They also expressly refer to acts prior to the commencement of smoking by each of the plaintiffs i.e. prior to 1948, 1942 (or 1945) and 1968 respectfully. The wrongful acts alleged are multiple. It was submitted, and again on the facts I accept the submission, that there is, in the proceedings to date a lack of specificity in relation to the claims being made by each plaintiff against the relevant defendant. Similar allegations are made against all defendants and appear to be made irrespective of particular facts which might be associated with each plaintiff.
Each plaintiff is bringing a claim for damages for personal injury loss and damage against one or more defendants by reason of alleged torts and other wrongs alleged to have been committed by that defendant. Each claim would have to be considered and proved individually. Each plaintiff would have to establish that a named defendant owed a duty of care to her; was in breach of that duty of care and such breach caused the injury or damage alleged. Viewed in this context, the defendants appear to me justified in submitting that relatively little progress has been made in the proceedings to date in identifying the particular claims of each plaintiff against the relevant defendant and that it is unlikely that these claims, would if permitted to proceed, come to trial for a further number of years.
The affidavits sworn by Ms. Foley, Mr. Bourke and Mr. Beresford as solicitors for each of the defendants respectfully undoubtedly refer by way of primary prejudice to what I have referred to as the lapse of time from the date of the alleged wrongful acts. However, they also refer to prejudice from delay and lack of progress in the prosecution of the proceedings. I have also concluded from a consideration of the potential witnesses or persons identified therein who might assist the relevant defendant in the preparation of the claims that there are a limited number of persons who have died within the periods of delay identified and more particularly that for other persons, already quite elderly delays of four to five years as a matter of probability will reduce the potential of such persons to give meaningful assistance or act as a witness. I have concluded that each of the defendants as a matter of probability has suffered prejudice by reason of the inexcusable period of delay since the accrual of the causes of action.
Counsel for the plaintiffs submitted that each of these defendants had engaged in the proceedings with the plaintiffs such that it would be unjust to the plaintiffs, notwithstanding any prejudice caused by the delay to dismiss the claims. The engagement relied upon as set out in the affidavits of Mr. Ward sworn in each application. Essentially the engagement alleged falls into two parts:-
1. The arrangements made in relation to the collection of medical records; and
2. The steps taken in the proceedings including in particular compelling the delivery of the statement of claim and requiring the furnishing of replies to particulars.
In response, it is submitted on behalf of all the defendants that these were reasonable steps to have taken on behalf of the defendants and should not on the facts debar the defendant from obtaining the order to dismiss. Also, that the defendants could not ascertain properly until after the delivery of the statements of claim and replies to particulars whether or not the defendants would be able to deal with the claims or whether the prejudice or unfairness to the defendants or indeed the inability for a fair trial to be conducted would be such that the defendants would be entitled to an order for dismissal.
The principles set out in Primor Plc v. Stokes Kennedy Crowley and Ors. make clear that the courts must consider the engagement of the defendant with the plaintiff on the facts of each case. It appears to me that the steps taken by the defendants in relation to each of these plaintiffs to date in the context of the relevant claim were reasonable and are not such as to debar their entitlement to an order to dismiss if the facts otherwise so dictate. Inevitably the steps taken by the defendants will have resulted in the plaintiff incurring costs in processing their claim.
Counsel for the plaintiffs submitted that where a plaintiff fails to duly prosecute a claim that the defendant is put on election either to bring an application to dismiss for want of prosecution or to compel the plaintiff to proceed. I do not accept that any such generalised principle exists. Rather it appears to me that the conduct of the defendant must be considered on the facts of each case as set out by Hamilton CJ in Primor Plc v. Stokes Kennedy Crowley. It must be open to a defendant as was done in two of these claims to bring a motion to dismiss in the absence of a statement of claim but if it is then delivered not to pursue the motion without necessarily being prevented from bringing a further motion to dismiss for want of prosecution at a later stage if the facts so require.
In Ms. Garland and Ms. Nevin’s claims reliance was sought to be placed upon the fact that the defendants’ current motion to dismiss was issued after the plaintiffs’ motion for judgment in default of defence. I do not consider that this materially alters the balance between the plaintiff and the defendant.
Conclusion on want of prosecution
I have concluded on each of the defendants’ applications to dismiss for want of prosecution that even limiting my consideration of the impact of delay to those periods since the accrual of the causes of action considered to be inexcusable that the balance of justice is against permitting each plaintiff to proceed with her claim and accordingly that I should grant an order to dismiss in respect of her claim on this ground. I would emphasise that a significant factor in my so concluding is the nature of the claims as pleaded and lack of real progress made on behalf of the plaintiff in each of these claims since the commencement of proceedings. Even taking into account the very difficult nature of the claims sought to be made out, the almost standard form statement of claim; scattergun approach in the allegations of wrongful acts and generalised responses in the replies to particulars and complete lack of specificity relating to the individual plaintiff and relevant defendants mean both that the probable length of time between now and the date of a trial is increased as is the prejudice caused by the inexcusable delay and the prejudice and unfairness to the defendant in allowing the claim as pleaded and particularised to proceed.
Dismiss in the interest of justice.
For the reasons identified above the questions which I have to consider on the facts of each case are:-
1 Is there, by reason of the lapse of time a real and serious risk of an unfair trial; and
2 Is there by reason of the lapse of time a clear and patent unfairness in asking the defendant to defend the action.
The relevant lapses of time are the periods between the wrongful acts alleged on which a court will be asked to make determinations and the probable trial dates.
I have earlier identified the factors to be considered by the court in reaching a conclusion on the above questions. On the facts of each of these applications my consideration is as follows:-
1 None of the defendants can be considered to have contributed in any significant way to the relevant lapse of time.
2 The claims being made are extremely wide ranging both in the nature of the wrongful acts alleged and the time over which they are alleged to have occurred.
3 There will be significant factual issues to be determined by the court if the claims went to trial.
4 There will inevitably have to be much oral evidence. Counsel for the plaintiffs sought to submit that significant issues might be determined on documentary evidence. I do not accept this, the primary factual issues in relation to what was done; the scientific information available to or which ought to have been available to the defendants and the decisions taken in light of same would have to be decided on oral evidence.
5 I am satisfied on the affidavits sworn by the solicitors for each of the defendants that a significant number of relevant witnesses to the fundamental claims made which appear to relate to the period prior to and early years of smoking of each of the plaintiffs will not now be available to the defendants.
6 The lapse of time between many of the wrongful acts alleged and hence factual issues the court would have to decide and a probable trial date is extremely long. In relation to certain issues in all cases it may be almost 100 years. For many others it will be at least 60 years in Ms. Manning’s and Ms.Garland’s cases and 40 years in Ms. McNevin’s case.
My reasoning in reaching the above conclusions is perhaps most easily understood by taking as an example two of the claims which appear fundamental to each of the plaintiffs’ cases against her defendant. In para. 4 of each of the statements of claim it is pleaded:
“At all material times, the Defendant in the full knowledge as to the addictive nature of the tobacco and cigarettes manufactured and supplied by it manipulated and orchestrated the tar and nicotine levels to increase and continue the addictive nature of the said products for the purpose of commercial gain without any or any due regard as to the health, safety or welfare of the plaintiff and other availing of and using the said product, and for the purpose solely of creating a dependence thereon.”
In replies to particulars Ms. Manning has identified that the “material times” in the above paragraphs refer to “when the defendant initially started selling/distributing/manufacturing cigarette products”. It is further clarified in the second reply to particulars that the plaintiff alleges that the defendant ought to have ceased manufacture, distribution, sale and supply of all tobacco products prior to 1948.
In Ms. Garland’s case, in the replies to particulars “material times” is identified as referring to “when the defendant initially started the manufacturing, distribution and supply of the cigarette products”. In reply to the notice for further and better particulars it is stated “in addition in relation to this particular plaintiff from 1942 when she commenced smoking”.
In Ms. McNevin’s case the “material times” are identified as referring to “when the defendant initially started selling/distributing/manufacturing cigarette products”.
At para. 5 of each of the statements of claim there is a further broad claim made in the following terms:
“In addition, at all material times the defendant, its servants or agents knew or ought to have known that the said tobacco and cigarette products gave rise to and did cause a risk of harm and damage and adverse medical and psychological consequences and despite the said knowledge continued to advertise, manufacture, distribute and sell the said products without any or any adequate or appropriate regard to the health of consumers of the said product including the plaintiff and/or were reckless as to the consequences and the health of consumers of the said product including the plaintiff”.
In the replies to particulars the plaintiffs have identified that “at all material times” as meaning in relation to this plea “since the defendant started selling/distributing/manufacturing cigarettes in Ireland”.
Further the servants or agents of the defendant are stated to “include subsidiaries, parent companies, successors, assignees, manufacturers, distributors and all other companies relating to the manufacture/distribution and sale of cigarettes and/or tobacco products”. The plaintiffs have each though requested failed to identify when it is alleged the particular defendant started selling, distributing or manufacturing in Ireland.
Amongst the particulars of negligence (and which might appear to support either of the above claims) in the statements of claim are:-
(i) Persisting in manufacturing, marketing and distribution the said cigarettes notwithstanding their knowledge of the fact that same, when used as intended, gave rise to dependence and were harmful to human health;
(j) Failing to desist from manufacturing, marketing and/or distributing the said cigarettes notwithstanding that it knew or ought to have known that same when used as intended, gave rise to dependence and were harmful to human health;
(k) Failing to take any or any adequate care in or about the processing of the said cigarettes;
(l) Failing to heed warnings in scientific and medical literature and/or in the scientific and medical community of the fact that cigarettes, when used as intended, gave rise to dependence and were harmful to human health;
(p) Failing to properly investigate research and advise upon the extent and manner in which the said product, when used as intended, gave rise to a dependence and were harmful to human health;
(r) Knowingly withholding from the plaintiff, information to enable her to make an informed decision as to whether or not she used the defendant’s product;
The above are only a small sample of the claims and particulars of negligence alleged. It seems difficult to conclude other than I have done above in the light of such claims being made and persisted with.
As is clear from the above the allegations being made by the plaintiffs go back to the time at which it is alleged that the defendants commenced selling/distributing/manufacturing cigarettes in Ireland. On Ms. Foley’s affidavit whilst there appears some doubt about the alleged activity in Ireland of Benson and Hedges Limited prior to the date Ms. Manning alleges she commenced smoking it has long been manufacturing cigarettes in the United Kingdom. Mr. Bourke’s affidavits suggests that the defendant John Player & Sons Limited forms part of a group which has carried on the business of manufacturing/selling/distributing cigarettes in Ireland at least through the entire of the twentieth century. In the case of P.J. Carroll & Co. it appears from Mr. Beresford’s affidavit that it commenced manufacturing cigarettes in Ireland in 1906. Hence it appears in respect of each of the defendants that as a matter of probability the claims would require the court to decide issues of fact pertaining to the state of scientific knowledge which they either were aware of or ought to have been aware of and the precise decision taken by the defendants not only in relation to the manufacturing but including detailed decisions effecting such matters as the level of nicotine over much of the twentieth century. Many of these issues would have to be determined on oral evidence and it is improbable that the relevant witnesses would be available to the defendants relating to the earlier part of the twentieth century.
For a court to be asked in the years 2006 or 2008 or later to determine issues of fact of the nature which would be required by these claims as to what was or was not done and why in the early part or even 40 years ago and in the probable absence of many of the persons actually involved in the words of Henchy J. in O’Domhnaill v Merrick [1984] IR 151 “puts justice to the hazard”.
Accordingly, I have concluded that by reason of the lapse of time between the multiple wrongful acts alleged more than 40 years ago in Ms. McNevins case and more than 60 years ago on Ms. Manning and Ms. Garland’s cases and the probable hearing date of these plaintiffs’ claims that there is a real and serious risk of an unfair trial if these claims were to be permitted to continue.
I have also concluded by reason of the same lapse of time and nature of the claims that there would now be a clear and patent unfairness in asking the defendants to defend each of these actions now brought against them.
Order
On each of the motions I will make an order dismissing the named plaintiff’s claim
Ryan v Doyle
High Court, Kelly J., April 23, 2004
JUDGMENT of Mr Justice Kelly delivered on the 23rd day of April, 2004.
The Application
The first defendant seeks an order striking out the plaintiffs’ claim pursuant to the inherent jurisdiction of the court on the grounds of prejudice resulting from inordinate and inexcusable delay in the institution and/or prosecution of the proceedings by the plaintiffs.
The second defendant seeks a similar order.
The third defendant sought an order that the plaintiffs’ claim against him be dismissed on the grounds that it is bound to fail. It was accepted that he was entitled to succeed on this application and during the course of the hearing an order was made striking him out of the proceedings.
Background
These proceedings began by the issue of a plenary summons on the 25th October, 2001. A statement of claim was delivered on the same day. The first defendant delivered a defence and counterclaim on the 18th July, 2002. The defence of the second defendant was delivered on the 27th September, 2002.
All of the plaintiffs are sisters of each other and of the late John Doyle Junior (Junior). The plaintiffs and Junior are all children of the late John Doyle Senior (Senior).
The first defendant is the widow and sole Executrix of Junior. She extracted a Grant of Probate on the 5th October, 2001 and is sued in her capacity as executrix of Junior’s estate. Senior died on the 15th December, 1985 having made his last will on the 19th October of that year. The first, second and third plaintiffs extracted a Grant of Probate in respect of Senior’s will on the 21st August, 1986.
At the time of Senior’s death he owned a substantial number of shares in a company called John Doyle and Co. (Horticultural Specialists) Limited (the company). The company had established and operated a nursery at Brennanstown Road in Cabinteely. It was incorporated in September, 1963 and the business was effectively run by Senior for many years.
Senior bequeathed his estate including the shareholding in the company to all of his children equally.
On the 24th October, 1986 the plaintiffs entered into a Deed of Arrangement whereby they, together with another daughter of Senior, one Hilary Hennessy, disclaimed their interest under the will of Senior together with their interest in the residue of his estate and any share of the estate which they might have been entitled to on intestacy in consideration of the payment of the sum of £12,260 to each of them.
By a further deed of the 28th April, 1987 the daughters of Senior appointed and confirmed to Junior the lands which formed part of the estate of Senior together with 1,831 shares in the company. The effect of these post mortem arrangements was to confer on Junior almost the entire legal and beneficial interest in the company and the residue of Senior’s estate.
The first part of the plaintiffs’ claim seeks a declaration that the agreements of October, 1986 and April, 1987 are void because they were allegedly procured under duress and undue influence or in the alternative constituted an improvident transaction or unconscionable bargain. An order is sought setting aside these transactions.
The second part of the plaintiffs’ claim is that there was a collateral agreement concluded at or about the time that the transactions in suit were made and executed between Junior and the plaintiffs the terms of which were that in consideration for the plaintiffs executing the relevant documents, the plaintiffs and each of them would remain entitled to receive an equal division of the proceeds of sale and/or rezoning and/or redevelopment and/revaluation of the lands which formed part of the estate of Senior.
The third part of the plaintiffs’ claim is an alternative one. In the event that the court refuses the reliefs sought against the first defendant there is a claim in negligence and breach of contract made against the second defendant. He is a solicitor who was at all relevant times a sole practitioner. The plaintiffs assert that he was negligent and in breach of duty and breach of contract towards them in respect of the advice given or not given as the case might be concerning the transactions and arrangements made between the plaintiffs and Junior subsequent to the death of Senior. A full defence has been delivered to this claim and it is asserted by the second defendant that at no time did he act on behalf of the plaintiffs in respect of the agreements in question nor was he asked to.
Each of the defendants now asks that the court exercise its inherent jurisdiction and strike out these proceedings. It is argued that the plaintiffs are now seeking to litigate arrangements and agreements entered into by them in 1986 and 1987 and are therefore guilty of both inordinate and inexcusable delay which has given rise to actual prejudice being suffered by the defendants in attempting to defend the case, most particularly by reference to the fact that Junior who was pivotal to the arrangements in suit is now dead.
Lengthy affidavits were sworn in respect of these motions. There is a good deal of conflict as to fact on those affidavits. It is not possible for the court to resolve those conflicts at this juncture.
I propose to try and identify the salient facts which are not in dispute.
The Undisputed Facts
Junior worked in the nursery business from his teenage years. As Senior’s health began to fail Junior took increasing responsibility for the management and operation of the business.
Senior died on the 15th December, 1985. Junior had an expectation that the nursery business would be left to him. Shortly before his death Senior executed his will bequeathing his estate, including his shareholding in the company, to all of his children equally.
Junior was aggrieved at this because he had worked in the business for about twenty years and had been largely responsible for its operation for a substantial part of that time.
Junior appears to have considered emigrating and disposing of his shareholding to his sister Hilary. Hilary has sworn an affidavit in these proceedings but apart from that is not privy to them. She had no means of funding the purchase of Junior’s shares. She appears to have acted as a sort of broker by suggesting to the other sisters that they should consider offering their interest in the nursery company to Junior.
It was in this context that the deeds of the 24th October, 1986 and the 28th April, 1987 were executed. One solicitor, namely the second named defendant, acted in the matter.
Junior ran the business until his untimely death at fifty years of age on the 20th May, 2001.
The plaintiffs were paid what they were entitled to under the terms of the deeds and it is alleged substantially in excess of that sum. These payments came from Junior.
No legal proceedings were ever brought to challenge Senior’s will nor were any proceedings instituted during the lifetime of Junior to contest the deeds in suit.
Issues
If this case is permitted to go to trial it is clear that the court is going to have to make a determination of whether or not the deeds in suit were procured under duress and undue influence exercised by Junior. The essence of the plaintiffs’ case is that Junior wrongfully procured the execution by them of the disclaimers and deeds which are now sought to be impugned.
As an alternative to that claim they allege the existence of a collateral oral agreement concluded at or about the time that the deeds were executed. There is also an assertion that the primary transaction involving the execution of the deeds was improvident. Payments in excess of what is provided for in the written instruments appear to have been made, with such payments emanating from Junior in favour of his siblings.
There is on the affidavit evidence very considerable conflict and quite clearly much bitterness. Little is to be achieved by rehearsing any of this matter in this judgment since I am not in a position to adjudicate on where as a matter of probability the truth lies on the basis of affidavit evidence.
It is sufficient to record that the plaintiffs’ affidavits are replete with allegations that Junior was domineering, bullying and intimidating and thereby procured the execution of the deeds in question. If that indeed was the case it is perhaps a little surprising that the plaintiffs not merely did not bring any proceedings during Junior’s lifetime but apparently accepted assurances from him that he would honour the alleged collateral agreement and treat them fairly and properly. However, that is the case which they make and which they say explains the failure to bring proceedings until after Junior’s death when they realised that he had not looked after them properly in accordance with the collateral agreement. The allegation of bullying and intimidation is one made against Junior only and not against the first named defendant. She denies that he was a man of that disposition and that is a view supported to the limited extent that she can from her own knowledge, by Hilary Hennessy.
The Legal Principles Applicable
This is an application to have these proceedings struck out because of delay on the part of the plaintiffs in circumstances where such delay has resulted in prejudice being suffered by the defendants to such an extent that there is a real and serious risk of an unfair trial.
The first defendant accepts that the test to be applied on this application is that prescribed by the Supreme Court in Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 459. Although that case dealt with post commencement delay in proceedings it is accepted by the first defendant that it should apply here even though the bulk of the delay is pre commencement of proceedings.
It has been suggested that a different test applies to pre commencement delay, an issue to which I alluded in Kelly v O’Leary [2001] 2 I.R. 526. The test in such a case it was said was that to be gleaned from the decisions of the Supreme Court in O’Domhnaill v Merrick [1984] I.R. 151 and Toal v Duignan (No. 1) [1991] I.L.R.M. 135. The test prescribed in those cases is a wider one based on general principles of fairness regardless of whether the delay is excusable or not. As the first defendant accepts the burden of the more stringent test contained in Primor I will apply it in respect of that defendant. The second defendant does not accept that the Primor test applies.
In Primor the Supreme Court set forth the principles upon which this undoubted inherent jurisdiction ought to be exercised. A party seeking a dismissal of proceedings by reason of delay has to demonstrate that such delay was both inordinate and inexcusable. Even where delay can be so categorised the court must nonetheless exercise a judgment on whether, in its discretion, on the facts, the balance of justice is in favour of or against the case proceeding to trial.
In considering this obligation the court is entitled to take into consideration and have regard to the following – (1) the implied constitutional principles of basic fairness of procedures, (2) 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 plaintiffs’ action, (3) any delay on the part of the defendant – because litigation is a two party operation, the conduct of both parties should be looked at, (4) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiffs’ delay, (5) 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, (6) 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, (7) the fact that the prejudice of the defendant referred to in (6) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant’s reputation and business.
Those principles were subsequently reiterated by the Supreme Court in Anglo Irish Beef Processors v Montgomery [2002] 3 IR 510.
Inordinate Delay
These proceedings were commenced in October, 2001. That was fifteen years after the execution of the deeds of October, 1986 and fourteen and a half years after the execution by some of the plaintiffs of the subsequent agreement of 28th April, 1987. Throughout that time it was open to the plaintiffs to bring proceedings but they did not do so. In my opinion the delay in commencing these proceedings was on any view inordinate.
Inexcusability
A number of reasons are advanced by way of excuse for the non-commencement of proceedings much earlier than they were and certainly during the lifetime of Junior.
In the principal grounding affidavit sworn by Catherine Ryan an attempt is made to excuse delay on the basis that it was not until the death of Junior that the plaintiffs’ cause of complaint arose, because it was only then that they realised that he had not honoured the terms of the collateral agreement.
That excuse has however to be seen in the light of the fact that the principal relief which is sought in the proceedings is not by reference to the collateral agreement but rather an assertion that the execution of the deeds in 1986 and 1987 was wrongly procured largely as a result of threats and bullying on the part of Junior. There is really no excuse proffered as to why proceedings seeking reliefs in respect of that conduct were not commenced save by reference to the alleged expectation that the collateral agreement would be honoured. There is of course an inherent contradiction in this line of argument because reliance upon a belief that Junior would act fairly and properly appears to be totally inconsistent with the complaints made by the plaintiffs concerning his conduct. Catherine Ryan says that at the time they executed the documents and for the remainder of his life Junior was very domineering, bullying and intimidating. He is also alleged to have been evasive. Why would one hold off instituting proceedings seeking to set aside the deeds by reference to a belief that a man of such character would honour his obligations?
The excuse is also inconsistent with the fact that the advice of Senior Counsel was sought by the plaintiffs in the year 2000 as to what is described as the meaning and effect of the documents. That was at a time when Junior’s death was not anticipated. The deponent was quite within her rights in claiming privilege in respect of that advice but what can be said about it is that no proceedings were instituted on foot of it and what is more to the point it raises the issue as to why such advice was not sought and obtained years beforehand.
A further excuse has been alluded to by reference to the health of the second and fourth plaintiffs. The position of the fourth plaintiff can be dealt with quite easily. There is no allegation that she is or was incapable of managing her affairs or is subject to any disability between the time of execution of the deeds and the commencement of these proceedings. She received treatment for depression in 1984 and again between April, 1986 and January, 1988. There is no evidence of any subsequent treatment save that she continues to take anti-depressant medication. I do not consider that any of that could constitute an excuse for not commencing the proceedings timeously.
It is asserted that the second named plaintiff is a person of unsound mind. The present proceedings have been instituted in her name suing by her next friend. I assume that it was her next friend who made the decision to institute these proceedings on her behalf. Such a decision could have been made at any time from 1987 onwards. If therefore she is a person under a disability being a person of unsound mind, in my view on the basis of the evidence before me that does not provide an excuse for not commencing the proceedings before 2001. Nothing has been heard from the next friend by whom she sues in this regard.
Having regard to the foregoing I am not satisfied that any of the excuses which have been proffered by way of explanation for the commencement of the proceedings as late as 2001 are valid and I therefore conclude that the delay in instituting the proceedings is both inordinate and inexcusable.
That of course is not an end of the matter, I must now go on to the third part of the Primor test namely the exercise of my discretion having regard to the facts.
Exercise of Discretion
Criticism has been made of delay which has occurred subsequent to the institution of the proceedings. The plaintiffs allege delay on the part of the defendants in delivering their defences and of further delay in bringing the present motion. Whilst there is some justification for these criticisms the delay involved is minor by comparison with the delay in the institution of proceedings. Furthermore there is no specific prejudice suffered by such minor delay apart from not getting the case into a list for trial.
The real delay with which I am concerned is that which occurred prior to proceedings being commenced. The real prejudice with which I am concerned is that which confronts the first defendant by reason of the death of Junior.
In attempting to stand over the validity of the agreements of October, 1986 and April, 1987 the first defendant has to do so without having available to her the evidence of Junior against whom the serious allegation of duress and undue influence and general improper and bullying conduct are made. She is likewise deprived of his evidence in attempting to deal with the collateral agreement allegedly made. The plaintiffs contend that this was an oral agreement made between them and Junior. How can any realistic forensic examination of that arrangement be carried out seventeen or eighteen years after the event and in the absence of Junior?
Insofar as the allegation of improvidence in the original transactions was concerned it is quite clear that there was a substantial sum of money agreed to be paid which was in fact paid to each of the plaintiffs. There are allegations that over and above that further sums were paid to them by Junior. But the fact and amount of such sums appears to be in dispute and the one person who could give evidence for the defence in respect of that element of the case is Junior. How can the first defendant demonstrate that the transaction was not improvident in the absence of evidence from him?
It appears likely that the first defendant will have available to her the evidence of Hilary Hennessy who quite clearly does not view matters in anything like the same light as the plaintiffs. Useful and all as her evidence might be it does not appear to me to be a substitute for the evidence which Junior could give had he been alive. Having regard to the views expressed by the Supreme Court in Anglo Irish Beef Processors Limited v. Montgomery it appears to me that I have to ask myself whether the absence of Junior gives rise to a substantial risk of an unfair trial. In my view that question has to be answered in the affirmative.
The plaintiffs contend that by reason of the relationship between them and Junior this is a case in which there is a legal presumption of undue influence. They further argue that if that is so no evidence of Junior would be required because that presumption would have to be rebutted by showing that the parties who yielded up their rights had independent advice. Even if such a presumption does exist it does not appear to me that it could be said that a fair trial could be had of the issues which arise on the pleadings here in the absence of Junior.
I am quite satisfied that if Junior were alive he would have been the principal witness for the defence. If the proceedings had been commenced in a timely fashion he would have been available to deal with them.
Despite the assertion made by the plaintiffs I do not accept that this case can be equated with one made under section 117 of the Succession Act, 1965. There a specific remedy and proceeding was created by the legislature which by its very nature has to be heard after the death of a deceased. Whilst there may be some similarity between the type of allegations that the court frequently has to deal with in such cases and a number of the contentions here it does appear to me that the two cases nor the legal principles applicable are analogous.
In these circumstances I am of the view that because of the inordinate and inexcusable delay in commencing these proceedings very substantial prejudice has been suffered by the first defendant in attempting to defend them. To allow the action to proceed to trial would be to put justice to the hazard and accordingly I propose to exercise my discretion by striking out the plaintiffs’ claims against the first defendant. I now proceed to consider the position of the second defendant.
The Second Defendant
This defendant says that the court ought not to apply the Primor test as against him since it is applicable only to post-commencement delays. Instead the court ought to approach the matter on the basis of the two decisions of the Supreme Court which I have already alluded to namely O’Domhnaill and Merrick and Toal v Duignan. Particular emphasis is placed on the latter case. This defendant contends that the Primor approach to delay involving a consideration of blameworthiness for delay it is not a feature of the Toal v Duignan test. The only matter with which the court is concerned is the existence of a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time.
This defendant may very well be correct in this assertion but it does not appear to me that it makes very much difference in the circumstances of the present case. The finding of inordinate delay in the institution of the proceedings and the lack of any excuse for so doing which I have already made insofar as the case against the first defendant is concerned is equally applicable as against the second defendant. It follows that regardless of which test I apply I am, insofar as this defendant is concerned, obliged to consider whether there is a real and serious risk of an unfair trial being had because of the prejudice which has been caused to this defendant by delay.
It is important to consider the basis of the case which is made against this defendant. First, it is quite clear from the statement of claim that the case against him arises only in the event of the court refusing the reliefs which are sought against the first defendant. The claim is an alternative claim. It is to the effect that any loss or damage or injury suffered by the plaintiffs was caused by his negligence, breach of duty and breach of contract.
The claim against the first defendant is two-fold. The first concerns the alleged coercion by Junior resulting in the plaintiffs entering into the agreements whereby they waived their entitlements to their father’s estate for what they say is inadequate consideration. Secondly, there is the allegation of the collateral oral agreement which was not honoured.
This second claim which is made against the first defendant forms no part of the case against the second defendant.
The essence of the case which is made against the second defendant is that he failed to advise the plaintiffs in respect of the agreement which they entered into with Junior. It is said that he was obliged to advise them to obtain independent legal advice and having failed to do so they, through the bullying of their brother, entered into an improvident transaction. This caused loss to them.
The second defendant says that he at no time acted on behalf of the plaintiffs in respect of the agreement nor was he asked to. He acted on behalf of the estate of Senior who had been a client of his prior to his death. He acted for the executrices to implement the agreement and took his instructions principally from the first plaintiff. Following Senior’s death he was contacted by her who asked him to act in the estate. He did so. In February, 1986 he received instructions that there had been a discussion between family members and the company’s accountants on foot of which they had agreed to the issue of bonus shares in the family company. He received instructions to draft the formal agreement to give effect to that decision and he did so. He sent copies of the draft agreement to Hilary Hennessy and to each of the second and third plaintiffs in the early part of 1986. The bonus share scheme had been agreed between the family and the accountants. No advice was sought from him regarding that agreement and he was never consulted as to why that scheme should not proceed. Towards the end of August, 1986 he was informed that the plaintiffs and Hilary Hennessy would instead disclaim their interest under the will in the family company. His instructions were limited to drafting the relevant paperwork and the obtaining of tax advice from accountants, which he did. On the 24th October, 1986 he attended Catherine Ryan, Imelda Quinn and Bernadette Feehan where the waivers were executed.
The administration of the estate was carried out between February, 1986 and April, 1987 when the administration accounts were finalised. Throughout the administration he dealt primarily with the first plaintiff but also with Junior and met the other two executrices Bernadette Feehan and Imelda Quinn. Hilary Hennessy instructed her own solicitor. During all of this time he never received any indication that there was any difficulty between family members. No suggestion was made then or later that Junior had exercised any undue influence of any nature over the plaintiffs in respect of the agreement entered into. Subsequently over the years from 1987 onwards he acted on behalf of both Bernadette Feehan and Imelda Quinn in respect of personal business. He also acted on behalf of the family company and dealt with Catherine Ryan in that regard. Until shortly before the present proceedings were initiated he was never advised that any of the plaintiffs had any complaint about the manner in which they were treated by Junior.
In these circumstances is there a real risk of an unfair trial insofar as this second defendant is concerned? In my view that question must be answered in the affirmative.
I come to that conclusion not merely because it would appear to be unjust to allow an alternative claim to proceed against him when the substantive and primary claim against the first defendant is being struck out because of a real risk of unfairness but also because actual prejudice is caused to this defendant in his attempt to defend himself. That prejudice arises directly from the death of Junior. Crucial to the plaintiffs’ complaints is that they suffered loss as a result of being permitted through the alleged negligence of the second defendant to enter into a transaction in respect of which inadequate consideration was paid. But it was Junior who provided and paid such consideration and it is alleged that sums in excess of what was contained in the actual agreement were paid. The second defendant cannot introduce evidence of such consideration actually paid to the plaintiffs because of the death of Junior. The first defendant avers that she is aware that the actual consideration paid by Junior exceeded significantly the consideration recited in the deed of arrangement. That view is confirmed by the evidence of Hilary Hennessy to the effect that she received £40,000. It is also supported by her averment that the arrangements which were made by the family after Senior’s death involved payments from Junior to her sisters and such were greater than the amounts stated in the relevant deeds and disclaimers. The effective evidence of this from the defence point of view would be from Junior. In his absence the second defendant cannot deal with the matter in an adequate fashion.
I am satisfied that given the lapse of time between the events complained of and the prejudice to this defendant arising principally from the death of Junior and thus his unavailability to give evidence a substantial risk to the ability to have a fair trial has been established. The second defendant cannot effectively defend himself on the principal issue which is whether the arrangements that were entered into were financially disadvantageous to the plaintiffs. He is also prejudiced by damage to his reputation and professional standing. He is being asked to defend this action at this remove in time without the presence of the one witness who could give evidence pertinent to the principal issue. That issue is the allegation by the plaintiffs that they received inadequate money for their disclaimers where it appears that sums in excess of that stipulated in the documents were allegedly paid to them from Junior who is not in a position to give evidence in that regard.
Conclusion
In my view the first and second defendants are entitled to the orders which they seek. The plaintiffs’ claim will be struck out.