Lodgements

Cases

Brennan v. Iarnrod Eireann

Barr J. [1992] 2 IR 170

H.C.

Barr J.

20th January 1992

This is an application by the defendants, all of whom are now represented by the same solicitors, to make a lodgment and amend their defences accordingly, though the time for so doing has expired.

I have been informed by counsel that representatives of the parties have met on two occasions and negotiations have taken place in an effort to settle the plaintiff’s claim. In that connection the plaintiff’s solicitor furnished to the solicitors for the defendants copies of all medical reports in his possession relating to the plaintiff’s injuries. A settlement did not emerge and the defendants now wish to have the leave of the court to make a late lodgment. In my view it would be unfair to the plaintiff to accede to that application. Bona fide settlement negotiations in personal injury actions are often in the best interest of the parties and are to be encouraged. They require candour by all concerned and an exchange of medical reports is part and parcel of the process. It seems to me that if such negotiations are unfruitful, the defendant ought not to be allowed to capitalise on the plaintiff’s full disclosure of his or her case as to personal injuries and/or on liability, and to use the information obtained in such negotiations as a measure for calculating what is intended to be a tight lodgment. If, in the absence of special circumstances, defendants were allowed to make or amend lodgments after unsuccessful settlement negotiations of that sort then two undesirable consequences might follow. First, it may cause plaintiffs and their advisers not to expose fully their situation as to personal injuries and/or liability in early settlement negotiations with defendants in case they may find themselves providing the basis for lodgments which might be more dangerous from the plaintiff’s point of view than otherwise might have been the case. Secondly, it could encourage some defendants or their indemnifiers to enter into spurious settlement negotiations, the actual purpose of which is to ascertain comprehensive information about the plaintiff’s case with a view to making a late lodgment based thereon.

pleaded. The only explanation in support of the application put forward by Mr. O’Connor in his grounding affidavit is that he now acts for the second as well as for the first and third defendants and that liability is no longer in issue. The plaintiff’s claim against all defendants is that she was savaged by a guard dog as she alighted as a passenger from a D.A.R.T. train. The dog was on the train in the ostensible care and control of a security guard being an employee of the third defendant. It is not contended that it was ever perceived by Mr. O’Connor or his clients that they or any of them ever had a good defence to the plaintiff’s claim. It does not seem to me that there are sufficient grounds for permitting a late lodgment and I refuse the application with costs to the plaintiff.

Dawson & Dawson t/a AE Dawson & Sons v. Irish Brokers Association

[1997] IEHC 217

MORIARTY J:

Three motions have been brought before the Court in relation to this matter. Two have been brought by Mr Herbert on behalf of the Defendants, and these respectively seek in the first instance particulars of the financial losses alleged to have been suffered by the Plaintiffs in consequence of the libel complained of, with an additional Order for Discovery of relevant documentation. The second such application by Mr Herbert seeks an Order permitting him, with his amended Defence, pursuant to the directions of the Supreme Court, to lodge in Court with an appropriate admission of liability a sum that the Defendants consider is sufficient to meet the Plaintiffs’ claim. The Plaintiffs have brought a cross motion and this seeks the maximum priority in the fixing of dates for the coming Michaelmas Term. The Judgement that was given in this matter in February last by the Supreme Court sets out in detail the quite convoluted dealings between the parties that gave rise to the present position. It is accordingly unnecessary that I should seek to reiterate in detail what was there very fully and concisely stated by O’Flaherty J. Suffice to say that certain differences arose between the Plaintiffs as practicing Insurance Brokers, and the Defendants as their parent association, in relation to the obligations imposed by the new professional regime that had been established. These differences came to a head when certain letters were written by the Defendants to interested parties in relation to the Plaintiffs, and these constitute the libel complained of by the Plaintiffs. At a trial last year, before Mr Justice Barron and a jury the substantive ground of Defence that was alleged by the Defendants was one of qualified privilege. Barron J took the view after hearing argument that this Defence was not satisfactorily substantiated and he disallowed it. The jury awarded a sum of £515,000 damages for the defamation to the Plaintiffs and each of them. The Defendants appealed, and the outcome of that appeal was set forth in the said Judgement of February last from O’Flaherty J with which the other members of the Court concurred. The Supreme Court ruled that Barron J had been correct in law in disallowing the Defence of qualified privilege, and further ruled that the damages that the Plaintiffs would appear to be entitled to had been so disproportionately measured by the jury as to necessarily require a further determination. It appears there may have been some discussion between the Court and the parties as to the most appropriate course, but in any event, rather than seeking to have the Supreme Court measure damages it was ruled that a retrial on the question of damages alone should take place. The Supreme Court made certain observations as regards the ambit of damages and stated inter alia that these would appear to be compensatory only, rather than on a basis of being aggravated and/or exemplary.

On the hearing of the motions some ten days ago, Mr Herbert, on behalf of the Defendants, referred to certain authorities, and in essence argued that, whether it be designated as general or special damages in strict law, a substantiative portion at least of the losses sought to be recouped by the Plaintiffs related to loss of income and diminution of turnover. In these circumstances Mr Herbert submitted that it would be an injustice to his clients if no particulars and/or discovery were directed so that the Defendants would be substantively on notice of the scale and nature of the case and damages that they were required to meet.

In relation to the second motion brought, Mr Herbert argued that in remitting the case as an assessment of damages as the Supreme Court had done, the parties were in effect in a position that was no different to that that would have arisen had a Defence been delivered with the option of a lodgement on foot of an admission of liability in the first instance. The Defendants, he said, had never alleged justification, but had merely argued qualified privilege and accepted that on foot of the Supreme Court’s upholding of Barron J’s disallowance this course was now precluded. In so as far as the Court had a discretion to permit a lodgement with an amended Defence, it would in Mr Herbert’s submission accord not only with enabling the Defendants to exercise a procedure ordinarily available, but would also reflect the overall interests of justice in seeking to achieve finality in the litigation.

Mr Albert Dawson opposed both the Defendants motions on his own behalf, and on that of his brother, and amply demonstrated as a litigant in person the fluency and knowledge of the case that had already been commended by the Supreme Court. He did embark somewhat into terrain beyond the strict ambit of the present interlocutory issues, intimating that, notwithstanding the discharge of the first jury hearing of the matter by Kinlen J, by virtue of Mr Dawson’s references in opening to massive alleged tax evasion by the Defendants, and the Plaintiffs’ utter unpreparedness to become compliant in this, he still intended to raise this aspect in the retrial. He further intended that the jury hearing the retrial should consider matters allegedly stated by the Defendants subsequent to the matters complained of in the Statement of Claim which appeared to equate or identify the Plaintiffs with the former financial adviser Mr Tony Taylor. As to proceedings to date, Mr Dawson, whilst not aggrieved by having had a retrial ordered, expressed himself as somewhat disappointed at the hearing accorded to him in the Supreme Court, and evinced further concern as to some alleged irregularities in regard to fixing a date for his trial. That he was conducting the litigation on his own and his brother’s behalf did not, he said, reflect any wish or preference on his behalf, as substantial outlay in respect of legal fees had been incurred towards his initial solicitors, but he had been beset by a combination of conflicts of interest and disinclination to discharge instructions in full on the part of legal advisers, and it was in this context that he came to appear in person. However, he had retained the services of the firm of Messrs Cullens of Wicklow, although the extent of such retainer was not made entirely clear to me.

As to the particular reliefs sought by the Defendants Mr Dawson stated that, given the nature of the libel, the Defamation Act 1961 provided that it was not necessary to prove special damage. Although the Plaintiffs had suffered substantial and ongoing losses of clients who had left the Plaintiffs to deal direct with insurance companies, and this would be borne out by comparative turnover figures, it was embarrassing to seek to procure the testimony of such lost clients, and impossible to speculate as to the identity of potential new clients lost. Accordingly special damages as such had never been claimed and it was sought only to recover general damages having regard to these factors. As to the Defendants motion for leave to make a lodgement with its amended Defence for purposes of the retrial on damages directed by the Supreme Court, Mr Dawson argued that, given the protracted history of a grossly damaging libel, and the complete absence of any retraction, apology, or offer of amends on the part of the Defendants, who had continued to contest liability until the Supreme Court Judgement, it was unfairly and unacceptably late for them now to be allowed recourse to this procedure. Even the relevant averments in the grounding Affidavit filed by the Defendants solicitor, referred only to a disposition to admit libel rather than setting forth an explicit admission of liability.

I inquired of Mr Dawson whether or not, even late in the day, there might be some merit in seeking by a realistic lodgement to finalize arduous and time-consuming proceedings on a basis of appropriate name clearance and damages. He reiterated that it was simply too late, that resumption of the family practice as heretofore was probably no longer feasible, and that, in any event, he believed that a new jury would award more than had the last one. On being further asked by me whether such an award might not merely recycle events to date, given the Supreme Court’s findings on damages both in the specific case and in certain of its other decisions, he responded that the particular circumstances of the case made it a libel of quite exceptional dimensions.

Some authorities afford a measure of assistance in ruling on the motions. As to the particulars/discovery aspect, in Lewis v Daily Telegraph Limited [1963] 1 QB at 340, Holroyd Pearce LJ at page 376 stated as follows, “if a person libeled has suffered specific damage he can plead it as special damage and recover it. That claim will then have the advantage or disadvantage of a careful scrutiny supported by documents and oral evidence from which a Court can decide whether in truth a decline of business resulted from the libel. The Plaintiffs would then have to give particulars and facts and figures to support it. The Plaintiffs on their accountants could produce figures of turnover and graphs showing any sudden downward tendency such as for instance, that in the week after the libel orders noticeably declined and so forth. Managers, salesmen, and others could give supporting evidence, evidence could be called to show that the price of the shares and the stock market had declined and the Defendants would have an opportunity of calling evidence to counter the Plaintiffs claim for special damage. The Plaintiffs did not take this course, they did not plead any special damage, but even though the Plaintiffs plead no special damage they rely on a general loss of business, if the words were in their very nature intended or reasonably likely to produce a general loss of business (Ratcliff v Evans, Bowen LJ). That is a reasonable way of dealing with some general loss from a libel, which can reasonably be inferred and cannot be proved. Nevertheless, if large sums are to be attributed to loss of business from a libel, it is plainly desirable that they should be pleaded, particularized, and so far as possible, supported by evidence”. Again in Calvet v Tomkies [1963] 3 All ER 610, a defamation claim brought by an actress, Russel LJ stated at page 613 “but if evidence of actual loss of earnings or decline in business even without any figures mentioned is to be put forward in the case such as this, I for my part as at present advised am inclined to think that it should be pleaded with consequential discovery”. He also went on to say, which is relevant given the number of important legal rulings likely to be required of the trial judge in the retrial of the present case “Beyond that rathergeneral observation I agree that it would be quite wrong to attempt to define what questions may or may not be asked or answered at the further trial”. In so stating he was upholding earlier dicta in the principal Judgement of Lord Denning MR. In that principle Judgement at page 112 Denning MR confirmed that the Plaintiff “Cannot introduce by a side wind evidence of special damage without pleading it”.

With regard to the Defendants motion to make a lodgement with its amended Defence, it appears to me that the changes in rules and procedures in this regard introduced by order 22 of the present Rules of the Superior Courts do not materially alter the issue to be addressed. The leading case remains that of Ely (an infant) v Dargan [1967] IR 89, a decision of the Supreme Court primarily concerned with ensuring that, if leave was to be granted to the Defendant to increase a lodgement in anticipation of a retrial on damages only, it could only be done on a basis of such terms as fairly took account of all prior proceedings and the interests of the infant Plaintiff. As such, much of the Judgement of O’Dalaigh CJ has only limited application to the present case, but it is highly material that in regard to the antecedent and analogous rule he stated at page 94 “The rule is in the widest terms and it clearly allows of an application being made to the Court before a retrial as well as before a trial”. And later, before dealing with the particular circumstances of that case “The Defendant was right to urge that the public interest is served by allowing a Defendant even at the 11th hour to proffer to the Plaintiff under the lodgement machinery of the courts a sum that the Defendant considers adequately meets the Plaintiffs claim”.

I have considered all the legal and factual matters raised by both sides in conjunction with the directions and reasoning comprised in the Supreme Court Judgement, in particular what was stated by O’Flaherty J at pages 23 and following in relation to damages. I am satisfied that each of the three motions brought should be acceded to. However, the components of damages may be designated,the Plaintiffs clearly seek a potentially immensely high award and propose to stress to the jury the number of clients lost by them and the curative downturn in income and turnover experienced by them in consequence of the libel. It would, in my opinion, be unfair and unsatisfactory to expect the Defendants to meet this claim without having some realistic intimation of the scope and scale of the claim it must meet. It also seems clear to me that in accordance with the basic principals enunciated in the Supreme Court in Ely (an infant) against Dargan, the Defendants should be permitted to make a lodgement with the amended Defence. Insofar as this represents an exercise of discretion I bear in mind,

(A) No justification was ever pleaded, the only substantive Defence initially raised being that of qualified privilege,

(B) The Plaintiffs will have access in relation to any lodgement made to the advises of Mr Laurence Cullen, a skilled and experienced litigation lawyer and,

(C) There is no question here of a background of settlement discussions or other negotiations having enabled the Defendants to know the Plaintiffs’ hand to a level of potential unfairness with regard to a lodgement, such as influenced the Court to refuse leave for a late lodgement in Brennan against Iarnrod Eireann 1993 ILRM at page 134.

Lastly I am quite satisfied from the motion brought by Mr Dawson that given the important issues and urgency of the matters raised, appropriate priority should be ensured in the Michaelmas listing of jury trials.

Now gentlemen, that concludes my substantive ruling and I am now perhaps primarily concerned with mechanics. It had occurred to me Mr Herbert, that I must obviously seek to provide a scheme of things that is manageable but at the same time brisk, and it did occur to me in the context, to seek to have you put on notice of the essential figures of the claim that you have to meet that it may be that in effect given the time factors and in all other matters the particulars are considerably subsidiary to discovery, and it seems to me that it might meet the justice of the case if I were to make an Order in terms of directing that the Plaintiffs discover on oath, all documentation for a three year period prior to the events complained of, and subsequently that will contain the relevant data in relation to diminished turnover and loss of clients. It seems to me, if I also add on the particulars procedure it may make it difficult to adhere to the time scale of seeking to get priority hearing in the Michaelmas Term.

MR HERBERT: I think My Lord, certainly if we were to have full cooperation in the matter of discovery, I think Your Lordship is probably right, there is no necessity to have particulars from the point of view I suppose of limiting the issues which the trial judge will have to address and the point of view I suppose of each party knowing exactly that in which they must address evidence particulars have their function. So I think they will accept their function quite apart My Lord, from discovery. To that extent, I think I urge Your Lordship to also refer to particulars when the issues come to be tried, the learned trial judge having to direct the jury, and to address his mind to the issues does need to know particularity what is exactly before him and between the parties, and without that we are faced with a broad and general claim. I think it would be difficult for the trial judge at that stage to rule on what matters are pertinent and relevant, and what matters are not. So I think it does My Lord, fulfill a very important function altogether and apart from separate of the discovery totally side by side but I will submit to Your Lordship that if Your Lordship grants both the particulars and discovery they can go on simultaneously and side by side. In other words, not for us to wait until the particulars are furnished before seeking discovery, we should immediately seek discovery and go ahead with it.

MR JUSTICE MORIARTY: What I envisaged and without hearing Mr Dawson, it is his understandable anxiety, that it become a priority trial in the Michaelmas Term and if needs be pleading in the Long Vacation. What I envisage is effectively a two month period from this week for these discovery and particular aspects to be finalized and perhaps a period of then two to three weeks thereafter for you to consider all matters and make your amended Defence with, if you chose, the lodgement on the appropriate basis and then there will be sufficient time for Mr Dawson, ideally with the assistance of Mr Cullen, to consider this aspect and still attend to ensure his priority listing for fixed dates.

MR HERBERT: Yes My lord, we will have, I am sure, full cooperation from the Dawson brothers in this matter, we would then have sufficient time to seek inspection of whatever documents which we will need to seek inspection before October. I think we are all anxious, it is agreed that this matter ought to have whatever priority the Court can give in the next term, we will work to that, we will hope to have every cooperation of Mr Cullen and Messrs Dawson, which I believe we will have.

MR JUSTICE MORIARTY: Lastly again before troubling Mr Dawson on it, I think it clearly follows, Mr Herbert, indeed you implicitly conceded it, that at least on the lodgement motion plainly you have no answer to Mr Dawson getting his costs of that.

MR HERBERT: Not at all.

MR JUSTICE MORIARTY: It seems to me on the other matters that perhaps little or any costs relate to the priority trial argument, but on the particulars and discovery, the normal Order that I would normally be disposed to make, subject to whatever Mr Dawson may say, would be to reserve that to the trial judge.

MR HERBERT: I think so My Lord, I think very much justice would be served by that, and I think the Order for general discovery is best here, rather than trying to particularize what exactly type of documents are necessary, Your Lordship did specify and it is all relevant documents and within that period.

MR JUSTICE MORIARTY: Well I am just wondering Mr Herbert, whilst of course I can only make Orders and I can not make recommendations, it had occurred to me and without in the slightest way seeking to be patronizing, about the exceptionally able way that Mr Dawson has conducted the substantive phases of case here and in the Court above, it does occur to me that perhaps Mr Cullen’s involvement would be particularly beneficial on as technical and intricate an aspect of discovery, and whilst I don’t think I can make any order, it had occurred to me to propose that perhaps Mr Cullen might be able to diminish the area of controversy by some form of liaison with your solicitors.

MR HERBERT: Again My Lord we hope that anything that advances the hearing and promotes justice will be done. So Your Lordship is making the Order in respect of any loss of income or other financial loss alleged to be attributed is libel.

MR JUSTICE MORIARTY: Yes well, Mr Dawson?

MR A DAWSON: The Defendants legal advisers have a habit of asking for particulars.

MR JUSTICE MORIARTY: Yes.

MR A DAWSON: And was last Friday, they asked for particulars of the particulars and then brought a motion to exclude what they had asked for.

MR JUSTICE MORIARTY: Yes.

MR A DAWSON: When they looked for discovery we have given them all the papers we have.

MR JUSTICE MORIARTY: Yes.

MR A DAWSON: They have a letter from us which they didn’t reply to or didn’t set their solicitor to reply to on the 19 March, 1992, and I pointed out to them then that we are cash broke. We have no turnover figures before the act commenced on the 1 October, 1990. We have no accounts before that date, because we deal strictly for cash. We collect and this is all in this letter, we collect cash, pay the companies their share, and the other is our personal income, but we don’t keep accounts of what goes on in the past, just finish once we take in a bar of chocolate, sell it, and give Cadbury’s their money, that is the end of it as far as we are concerned. We have no records, no turnover figures, and that is in our letter in April or March, 1992. We can give them hundreds and hundreds of names and addresses of people that have left us. Who died we don’t know, and who emigrated we don’t know, but we can give them that, providing these names are not used by the Defendants to the claim once more, and we can even give them the letter we wrote to the Guardian, asking the Guardian to tell their staff not to be spreading defamation, and when we got a letter back from the Guardian’s solicitors Matheson Ormsby Prentice, saying they would do no such thing, that they wouldn’t tell their staff not to be spreading defamation. We can give them letters we wrote to managers of companies pointing out that the Defendants officers and directors were taking part in serious crimes. We can give them all of that, but I have a feeling that when we give them that, there will be a motion that they don’t want the jury to see them because they are very damaging. We cannot give what is impossible to give, we have given them the turnover figures we have, which were required by a code of conduct from the 1 October, 1990. And another thing, either our turnover has reduced by a quarter they know they have to be certified, either they accept that there is some other reason which they can raise for reduction and they accept that if we lose a quarter of our turnover which they have got the figures for, that there has to be hundreds of people lost because that is the nature of things, and before October we are going to have another turnover figure for the end of September 1997, but we can’t give them what is impossible to give. We have no accounts, we are private individuals, not a company, so that would be our position. We don’t mind giving them what we have, but we can’t give what we do not have.

MR JUSTICE MORIARTY: Plainly Mr Dawson, particularly if you simply do not have or never had documents that fulfill a particular requirement the procedures in the Affidavit of the discovery to be sworn, will enable that aspect to the communicated. It is obviously my very profound hope that the parties can as realistically as possible seek to deal with these aspects in such a fashion as will avert further applications and will ensure the priority, I am quite anxious the case be given, that it will get on promptly in the Michaelmas Team. These are matters that have to be dealt with in the course of discovery. As of now I am satisfied that I should make an Order that concurrently in a period of, I will perhaps date the period from let us say, the Friday of this week by which time I will have no doubt the copy which I will approve and have circulated to the parties within a period of eight weeks or such further time to be agreed between the parties that there will be,

(A) Such particulars as can be given of the turnover for a period of three years prior to the libel and thereafter, and also of all financial losses alleged to have been suffered as best the Plaintiffs can formulate them in consequence of the libel, and that there be a Discovery Order similarly in general terms and I can take it Mr Dawson, on the basis of the Order that I have made you would be the person who would be swearing such an Affidavit. It is a matter without being in the slightest patronizing it does seem to me that Mr Cullen would be beneficial. It is a difficult aspect, and if it transpires you simply do not have documents, but can vouch some of the aspects Mr Herbert is concerned about then Mr Cullen will advise you to the appropriate plea to that effect. I am disposed to make an Order of particulars and discovery on the basis of eight weeks from Friday next and is it necessary that I make an Order as to pleading in the non-vocation?

MR HERBERT: No. Then do I understand Your Lordship to say I have the same period, eight week period to make the lodgement?

MR JUSTICE MORIARTY: What I had intimated what was the two month period, eight weeks from next Friday which means that people can get set about things today to some degrees in anticipation of the written Judgement being distributed or such time which may be agreed between the parties, thereafter I think I will allow a period of three weeks thereafter upon completion of discovery and particulars for the Plaintiffs to defend and lodge in accordance with the Order. Liberty to apply to both sides, costs of the discovery of the lodgement, motion in favor of Mr Dawson’s costs on the other motions reserved to the trial judge for the substantive hearing.

MR HERBERT: Thank you.

MR JUSTICE MORIARTY: Perhaps Mr Dawson for the time being I am sure it would be of use to you, the volume

Norbrook Laboratories Limited v. Smithkline Beecham t/a Smithkline Beecham Animal Health

[1999] IEHC 164; [1999] 2 IR 192; [1999] 2 ILRM 391

JUDGMENT of Mr Justice Kelly delivered the 18th day of May, 1999

INTRODUCTION

This case raises an interesting point of practice concerning the payment of monies into Court in defamation actions.

The Defendant seeks “an Order giving directions as to whether a payment into Court by the Defendant pursuant to Order 22 of the Rules of the Superior Courts in respect of the Plaintiffs’ allegation of slander of goods and in respect of some but not all of the Plaintiffs’ allegations of defamation contained in the Statement of Claim herein would be a valid payment into Court for the purposes of the said Order”.

THE PROCEEDINGS

This action was commenced by the issue of a Plenary Summons on the 1st of July 1994. The Statement of Claim was delivered on the same day.

The Statement of Claim alleges that the first named Plaintiff’s principal business is the development and manufacture of veterinary products including one known as “Life Aid Extra”. The second Plaintiff is what is described as an ancillary company and has as its principal business the marketing, distribution and selling of veterinary products including “Life Aid Extra”.

The Defendant, it is alleged, is also engaged in the business of manufacture and sale of veterinary products including one known as “Lectade Plus”.

It is alleged that in January 1994 the Defendant wrote a letter to all members of the veterinary profession within the State. The text of the letter is reproduced in full in the Statement of Claim. It clearly sought to promote the Defendant’s product. In the course of so doing the following sentence occurred:-

“Indeed a recently introduced competitor is seriously hypertonic thus running the risk of compounding the dehydration problem” .

The Plaintiffs take exception to the letter in general but in particular to the words which I have just reproduced. They say that that reference was designed to and did in fact disparage the Plaintiffs’ product “Life Aid Extra”.

The Statement of Claim goes on to allege that the words in question were false and were published maliciously or recklessly. It is then contended that the words were calculated to denigrate the Plaintiffs’ product and so to cause pecuniary damage to the Plaintiffs.

Paragraph 9 of the Statement of Claim reads as follows:-

“Further, the said words in their natural and ordinary meaning meant or, in the alternative, by inference and innuendo were understood to mean that the Plaintiffs, and each of them:

(a) Manufactured, distributed and sold an animal health product which was substandard.

(b) Manufactured, distributed and sold an animal health product which was likely to cause damage to calves including dehydration.

(d) Were negligent in the manner in which they researched, developed and manufactured the said product ‘Life Aid Extra’.

(e) Marketed, sold and distributed an animal health product to the veterinary profession and to the farming industry in a dishonest and disingenuous fashion.

(f) Produced and put on the market an animal health product which was in fact dangerous for the health of livestock.

(g) Put the said product on the market when they knew that it was dangerous and not beneficial for the health of livestock or not caring whether it was dangerous or not beneficial to the health of livestock.

(h) Promoted and advertised the said product in a false and negligent fashion.

(i) Made claims for the properties of the said product which they knew or ought to have known, were unwarranted and unjustified.

(j) Were ruthless and unscrupulous in their promotion and sale of the said product”.

The Statement of Claim goes on to claim damages for slander of goods and for libel.

A defence was delivered on the 2nd of May 1995. It consists of a series of traverses, an allegation of bona fide belief and lack of malice on the part of the writer of the letter in suit and a claim of qualified privilege. The defence specifically denies that the words complained of were understood to bear the meanings attributed to them at paragraph 9 of the Statement of Claim or any meaning defamatory of the Plaintiffs.

The present motion was issued on the 5th of November 1998 and came on for hearing before me on the 6th of May 1999.

THE DEFENDANT’S PROBLEM

The affidavit grounding the application outlines a problem which now confronts the Defendant. It has been advised by Counsel that it would be prudent to admit liability in respect of the allegation of slander of goods and in respect of certain of the allegations of defamation made by the Plaintiffs. It has furthermore been advised to make a single lodgment into Court in respect of those allegations. Counsel has advised that as far as the allegations of defamation are concerned a lodgment should only be made in relation to some meanings of the alleged defamation as set out at paragraph 9 of the Statement of Claim but that a lodgment should not be made in respect of other meanings contained in that paragraph. In other words the Defendant wishes to admit to certain of the innuendoes and to make a lodgment in respect of them but to maintain its defence in respect of others. The question which I have to decide is whether or not it is open to the Defendant so to do pursuant to the provisions of Order 22 of the Rules of the Superior Courts.

ORDER 22

Order 22 Rule 1(3) of the Rules of the Superior Courts provides:-

“In actions for libel or slander, or where the defence raises questions of title to land or incorporeal hereditaments, money may not be paid into Court under this rule unless liability is admitted in the defence”.

Order 22 Rule 1 (5) provides:-

“Where money is paid into Court in satisfaction of one or more of several causes of action the notice shall specify the cause or causes of action in respect of which payment is made and the sum paid in respect of each cause of action, unless the Court otherwise orders”.

Order 22 Rule 1(3) has for long been a source of controversy. In the Law Reform Commission Report on the Civil Law of Defamation published in 1991 it is pointed out that there does not appear to be any obvious reason why in an action for damages other than for defamation a Defendant is entitled to make a payment into Court whether or not liability is admitted but in the case of a defamation may only lodge monies with an admission of liability. The Commission commented that there did not appear to be any obvious reason for the distinction and said that it had been criticised as being unfair to Defendants. When this matter was highlighted in its Consultation Paper together with a provisional recommendation that the rules on payment into Court should be identical for defamation and other tort actions there was no dissent from that proposal. On the contrary it evoked wide support. Accordingly, the Law Reform Commission recommended that the Rules of Court be amended so that a Defendant in a defamation action could make a payment into Court without admission of liability. That recommendation has not been acted upon.

The Rules of Court in England and Wales on the topic were at one stage similar to the present rules in Ireland. They were changed many years ago so as to enable a lodgment to be made without an admission of liability.

The former English rule was apparently enacted in order to reverse a decision which allowed for a denial of liability and a payment into Court as in all other tort actions. The decision in question was that of the Court of Appeal in Hawkesley v. Bradshaw 5 QBD 302. That much is clear from the judgment of Lord Coleridge, CJ in Fleming v. Dollar 23 QBD 388. Having pointed out that the old English rule, which was Order XXII, r. 1, was directed against the decision of the Court of Appeal in Hawkesley v Bradshaw , he went on to say that that decision established the position that the Defendant should not be in a worse position in libel than in other cases. He continued:-

“But morally and practically there is a difference between libel and other cases. Thus, in an action for breach of contract, there is no reason why the defendant should not be at liberty to say, ‘I never made the contract, but if I did, I say that forty s. is enough to satisfy your claim’. But to permit a Defendant, in cases where a question of character is involved to say to the plaintiff, ‘Take forty s., or go on with your action’, is practically a very different thing. This being felt to be so, Order XXII, r. 1, was framed, and whilst it permits payment into court with a denial of liability in other actions, it excepts libel and slander”.

I do not find any convincing reasoning to justify a differentiation between defamation and other tort actions when it comes to the question of payment into Court. It would appear that even if such reasoning was once thought to be persuasive in England such is no longer the case for it is now and has for many years been possible to deny liability in a defamation action whilst paying money into Court. Notwithstanding all of the above however, the Rules of the Superior Courts in this jurisdiction have not been amended and so I must give effect to them.

PARTIAL JUSTIFICATION

Even in 1889 when Fleming v Dollar was decided it was clear that a plea of justification to a part of a divisible libel was permissible. Lord Coleridge CJ said at 392:-

“If a man makes several distinct charges and he can prove that some are true, but cannot prove others, it is fair enough that he should divide them; therefore, he can pay money into court in respect of the latter”.

Later he said :-

“Admitting, therefore, that the defendant may sever his justification where the alleged libel is divisible, we have now to see what application should be made of that principle to this case”.

The case of Fleming v. Dollar was a libel action where the Defendant by his defence admitted the publication of the words but denied the innuendoes. He pleaded that to the extent of the facts thereinafter stated the words were true in substance and in fact. The defence then set out a number of facts and finally contained an admission that the words were not wholly justified by the facts already mentioned and that the Defendant paid forty shillings into Court in satisfaction of the Plaintiffs’ claim. It was held that the defence was bad. Unless amended, it would have to be struck out as being contrary to the provisions of the then Order XXII, r. 1 and also as being embarrassing, in as much as it left in doubt what the Defendant justified and what he did not. Lord Coleridge CJ went on to say:-

“Now I have stated what the pleader has here tried to do. He admits that the defendant has gone too far, but he does not mention in what respect, or to what extent he has gone too far. Indeed it is said on his behalf that it is impossible to make the pleading more explicit in this respect. In my opinion this defence is extremely embarrassing to the Plaintiff, apart from the rule; but I think also that it infringes Order XXII, r. 1. I do not say that you cannot deal severally with the charges where they are divisible. But I say that the rule was pointed at this very kind of plea. The defendant will not particularise; in effect, therefore, he does not justify”.

This case seems to accept that a libel may be divisible not merely for the purposes of partial justification but also for the purposes of a lodgment in Court provided that the Defendant furnishes sufficient particulars of the parts of the libel in respect of which the lodgment is made.

The colourful case of Mackay v. Manchester Press Company 6 Times Rep. 16 is further authority for such a proposition. That was a libel action in which the Plaintiff sued in respect of matter which appeared in the Manchester Examiner and Times of the 6th of April 1889. The article read:-

“It is not generally known that Mrs Mackay, who entertained the Prince of Wales on Wednesday night, and whose parties will be conspicuous features of this season, was once what Americans call a washwoman – what we call a washerwoman. She was a poor widow with two children to support, and washed clothes for some of Mr Mackay’s miners out in Nevada. One of the men said to Mr Mackay one day, knowing that he had a good heart, ‘Won’t you go in and see poor – ‘s widow? She’s is in great trouble – very poor’ . Mr Mackay went to the cottage, saw the widow, fell in love with her, and married her”.

The innuendo pleaded by the Plaintiff in her statement of claim was – “meaning thereby that the plaintiff was not a lady by birth or education, nor accustomed to associate with persons of good position”. In their defence, the Defendants said that the words set out in the alleged libel did not mean that the Plaintiff was not accustomed to associate with persons of good position, and followed that with a plea under Lord Campbell’s Act with a payment of ten pounds into Court. When that defence was delivered the Plaintiff took out a summons to strike out the denial of the innuendo or alternatively the plea of payment into Court as being a violation of Order XXII Rule 1. The Master refused the Order sought. There was then an appeal to the Judge in chambers (A L Smith J) who made an Order that the Defendants amend by limiting the plea of payment into Court to the libel “without the innuendo denied” . This Order was appealed to the Queen’s Bench Divisional Court. Baron Huddleston affirmed the Order of the Court below. He is reported as saying that he “did not quite agree that there were here substantially two libels, but there was the libel and the innuendo, a part of the latter being accepted by the defendants as the meaning of the words, and a part denied. Under those circumstances it was right that the defendants should state in their defence to which part of the statement of claim the payment into court was intended to apply, and the appeal would, therefore, be dismissed” .

These cases appear to establish that there is no objection in principle to a defence of partial justification. Neither was there any objection in principle to a lodgment under the relevant Rules of Court in England to part of a defamation claim provided that the Defendant made it clear as to the part to which the lodgment was being made. Furthermore, it appears from the views of Baron Huddleston that although he did not “quite agree” that there were substantially two libels in the Mackay case, nonetheless the lodgment was permitted.

Order 22 Rule 1 (5) in this jurisdiction provides that where money is paid into Court “in satisfaction of one or more of several causes of action” the notice is to specify the cause or causes of action in respect of which payment is made. Can it be said that when a Plaintiff alleges a series of innuendoes each of them constitutes a different cause of action allowing a lodgment to be made in respect of each one severally? The answer to that I think can be found in two English cases. The first is Grubb v. Bristol United Press Limited (1963 QB 309). In the course of his judgment Holroyd Pearce LJ said at 326:-

“In my judgment, the strong body of authority which has been cited leads to the conclusion that any innuendo ( that is, any allegation that the words were used in a defamatory sense other than their ordinary meaning) cannot rely on a mere interpretation of the words of the libel itself but must be supported by extrinsic facts or matters. Thus, there is one cause of action for the libel itself, based on whatever imputations or implications can reasonably be derived from the words themselves, and there is another different cause of action, namely, the innuendo, based not merely on the libel itself but on an extended meaning created by a conjunction of the words with something outside them. The latter cause of action cannot come into existence unless there is some extrinsic fact to create the extended meaning. This view is simple and accords with common sense”.

The second case is Pedley v. Cambridge Newspapers Limited [1964] 1 W.L.R. 988). In the course of his judgment Lord Denning MR dealing with the aspect of the matter with which I am directly concerned here said in respect of an allegedly libellous newspaper article:-

“In view of these three innuendoes, it may be said that the Statement of Claim contained three separate causes of action, one for each innuendo: see Grubb v. British United Press (sic). The point that arises is this: the defendants wish to make a payment into court, but they wish to make one entire payment for the whole libel and not three separate payments for the three separate causes of action. If this were any ordinary kind of action – not libel or slander – the defendants could under the new practice undoubtedly have made one entire payment into court in respect of all the causes of action. That is clear from the new R.S.C. Ord 22 r. 1, which came into force at the beginning of this year. But actions for libel or slander are different. They are still governed by the old practice. The new R.S.C. Ord. 82 r.. 4, deals with libel and slander in the self same words as the old R.S.C. Ord. 22 r. 1(2). The result is that in a libel action, the notice must specify the cause of action in respect of which payment is made, and the sum paid in respect of each cause of action, unless the court otherwise orders. In other words, the defendant must make the payments separately for each cause of action, unless he can persuade the court to allow him to make one entire payment in respect of all”.

Having considered these authorities it seems to me that the position in this jurisdiction is as follows:-

Lodgment in Court may not be made in defamation proceedings unless liability is admitted in the defence.
There is no objection in principle to a defence of partial justification in respect of an alleged defamation. Such being so there is no objection in principle either to a Defendant making a lodgment with an admission of liability in respect of a defamation in its natural and ordinary meaning and some of the innuendoes alleged or alternatively to some only of the innuendoes alleged
Each of the innuendoes constitutes a separate cause of action for the purposes of Order 22 Rule 1 (5).

The practical effect of this is that in defamation proceedings it is possible to make a lodgment with an admission of liability to part of a Plaintiff’s claim i.e. the natural and ordinary meaning plus some of the innuendoes or some of the innuendoes alone provided that the Defendant makes the necessary admissions in the defence and identifies in the notice of lodgment the particular allegations in respect of which payment is made.

In the present case I will therefore accede to the Defendant’s application (which was neither consented to nor opposed by the Plaintiffs) by directing that a payment into Court by the Defendant in respect of the Plaintiffs’ allegation of slander of goods and in respect of some but not all of the Plaintiffs allegations of defamation is a valid payment and in conformity with the provisions of Order 22 of the Rules of the Superior Courts provided that the notice of such lodgment specifies the particular allegations in respect of which payment has been paid. It will also be necessary to make the relevant admissions in the Defence. Furthermore, in the light of the views of the Court of Appeal in Pedley’s case I am of the opinion that there should be a single payment made in respect of those parts of the Plaintiffs claim in respect of which there will be an admission of liability rather than a separate sum in respect of each allegation.

I order accordingly.

Grant v Roche Products (Ireland) Ltd

[2008] I.E.S.C. 35

JUDGMENT of Mr. Justice Hardiman delivered the 7th day of May, 2008.
In this action the plaintiff claims, on behalf of himself and of the other statutory defendants of Liam Grant Junior, deceased, and on behalf of the estate of the said Liam Grant Junior:
“Damages for mental distress, loss, damage and expense suffered by the plaintiffs and the statutory dependents by reason of the negligence, breach of duty and breach of statutory duty of the defendants and each of them their servants or agents”.

The action is, therefore, what is often referred to as a wrongful death claim. The first to fifth named defendants, inclusive, are referred to below as the “Roche defendants”. The first-named defendant is a limited company having its registered office in Clonskeagh, Dublin, and was at all material times engaged in the promotion and distribution of a drug known as Roaccutane on its own behalf and on behalf of the second, third and fifth named defendants. The second-named defendant is a company incorporated in Switzerland which was at all material times the parent company of the first, third and fifth defendants. The third defendant is also a limited liability company incorporated in Switzerland. The fourth defendant is a limited liability company incorporated in England and is the manufacturer of the drug known as Roaccutane. The fifth-named defendant is also a limited liability company incorporated in England and was at all relevant times the Product License Authorisation holder of the drug known as Roaccutane.

The Roche defendants are the moving parties on the present application.

The sixth-named defendant is a statutory body corporate established under the Irish Medicines Board Act, 1995 and having the functions set out in that measure. The seventh-named defendant is a consultant dermatologist carrying on practice in a Dublin hospital and who was at all material times a person permitted to prescribe the drug Roaccutane. This right was limited to consultant dermatologists.

The factual background.
The factual background to this case, and therefore to this application, is a tragic one.

The plaintiff and his late wife had four children, three boys and a girl. The deceased Liam Grant Junior was at the time of his death a twenty year old second year student of Electrical Engineering in University College, Dublin. He had no history of depression and is said – without contradiction – to have been a pleasant outgoing relaxed and genial person who was happy in his life and his studies. There was no family history of depression. He did however suffer from acne and consulted his general practitioner about this. After several visits and reviews the general practitioner referred him to the seventh-named defendant, a consultant dermatologist. It was she who prescribed him Roaccutane, to be taken orally on a four month course. In the month following this prescription the deceased became withdrawn and isolated. On or about the 15th June, 1997, during the final week of the course of prescribed medication, the deceased took his own life.

The plaintiff says that the general practitioner was totally surprised at this tragic development and stated that the deceased was the last person she would have expected to commit or contemplate suicide. She further expressed concerns to the plaintiff about the drug Roaccutane and referred to depression as a side effect of it. As a result of this the plaintiff has commenced an elaborate and expensive process of investigation into the drug and the scientific literature about it, as well as its regulatory history.

The plaintiff claims that depression, suicidal ideation and suicide itself are recognised side effects of the drug Roaccutane. He claims that Roaccutane is a defective product when used for medical treatment in the manner intended by the Roche defendants and that they were negligent and in breach of duty in the various ways set out in the Statement of Claim. The plaintiff has himself researched the nature and history of the drug Roaccutane and has retained others to do so for him. He has over the years obtained a considerable volume of documentation. An example of this, chosen more or less at random, is a:
“Medical Officer’s Review
NDA briefing psychiatric adverse effect”.
This document is dated the 15th April, 1998, and refers to Roche Pharmaceuticals as the “sponsor” of the drug there described as “Accutane”. The document commences with a summary which states:
“In May, 1997, we discussed with the sponsor our increasing concern regarding the seriousness of psychiatric adverse events being reported with Accutane use (see attached memorandum dated May, 1997, which includes initial consult from Pharmaco Vigilence). Special emphasis was placed on the pattern of the events and the cases with positive de-challenge and/or re-challenge. At the time of the Tele-conference most of the sponsor participants did not agree that the reports reflected effects of Accutane, instead they felt that the reports reflected underlying psychiatric disease in the population being treated. Nonetheless, the sponsor agreed to investigate further and reply to our concerns in a timely manner.”

It seems clear from the documentation assembled that, whatever the validity or lack of it attaching to the plaintiff’s specific allegations against the defendants, there has been for a considerable time a volume of discussion in scientific and regulatory circles on the topic of adverse psychiatric events associated or allegedly associated with the drug in question in these proceedings, as well as alleged birth defects associated with its use by pregnant women.

The present motion.
The plaintiff’s proceedings continued with the delivery of a statement of claim on the 6th July, 2000, followed by a long and detailed notice for particulars by the Roche defendants, replied to in September, 2001. On the 8th February, 2002, the Roche defendants delivered a defence which is a full denial of liability and of all the plaintiff’s allegations. Specifically there is a denial that Roaccutane “caused or contributed to the risk of severe depression or psychiatric disorders or suicidal ideation or suicide as alleged to at all.”

On the 18th October, 2004, the solicitors for the Roche defendants issued a notice of motion claiming:
“An order pursuant to the inherent jurisdiction of the Court staying the proceedings herein or, alternatively, restraining the continued prosecution of the proceedings on the grounds that, in light of the open offer made to the plaintiff by solicitors for the first, second, third, fourth and fifth named defendants by letter dated the 13th October, 2004, the relief sought by the plaintiff in the proceedings has been offered to him by these defendants and in those circumstances the continued prosecution of the proceedings would be an abuse of the process of the court.”

This application was grounded on the affidavit of Mr. Roderick Burke, Solicitor, in this he refers to the extensive discovery which has been made in the case and to further discovery which may be anticipated. He says that on reviewing this:
“It became apparent to my firm and to the Roche defendants that the discovery ordered by the Master could be even more extensive than that previously estimated. Furthermore it became apparent that even on the basis of the discovery ordered by the Master any trial of the proceedings could last for many months and would be extremely time consuming and involve enormous expense. In those circumstances following a careful review of the plaintiff’s claim, the Roche defendants instructed my firm to write to the plaintiff solicitors an open letter agreeing (without prejudice to liability) to pay the plaintiff all of the damages which he would be entitled to recover in the proceedings, comprising the damages for mental distress pursuant to s.49 of the Civil Liability Act, 1961 (as amended) and the Special Damages claimed in the proceedings together with the plaintiff’s costs to be taxed in default of agreement. My firm wrote to the plaintiff solicitors in those terms on the 7th September, 2004. It was made in that letter that the offer was being made by the Roche defendants in full and final settlement of all claims by the plaintiff against all of the defendants and strictly without admission of liability. The letter stated that the Roche defendants would also pay the costs of the other defendants to be taxed in default of agreement.”

The letter was exhibited.

The plaintiff solicitors rejected the defendants’ offer, describing it as “a cynical attempt to avoid a public trial in relation to [the Roche defendants] wrongful conduct concerning the drug Roaccutane”.

The plaintiff solicitors said:
“As your clients are aware our client has spent the last seven years of his life investigating the drug in question and your client’s actions in relation thereto and in particular the manner in which your client went about the clinical trials/testing, obtaining of relevant regulatory approval and subsequent dealings with regulatory authorities, handling/mishandling of adverse reaction reports and dealings with persons making complaints concerning same. Our client has also had to occur substantial expenditure in relation to scientific investigations/research into the adverse side effects caused by Roaccutane including depression, suicidal ideation and suicide.”

The plaintiff solicitors went on to make other, legal, points including that the letter of offer “does not constitute either a lodgement or tender within the context of these proceedings” and that “the writing of such a letter or reliance on same in these proceedings on any issue as to costs is not provided for by statute or by the rules of court.” They also said:
“On a very basic level the letter does not have any effect as it contains no offer of a specific sum in settlement of these proceedings. We were about to furnish you with the particulars of special damage and these are enclosed by way of separate correspondence.”

By a further letter of the 13th October, 2004, the defendant solicitors offered a total sum of €30,990.22 in respect of the plaintiff’s claim for damages being €25,394.76 being the maximum amount payable for mental distress pursuant to s.49 of the Civil Liability Act, 1961, as amended and the sum of €5,595.46 in respect of funeral expenses. “In addition, as already advised, our clients will pay your clients costs to be taxed in default of agreement”.

The defendant solicitors went on:
“We further confirm that the offer of settlement is made on behalf of the Roche defendants set out in our letter of the 7th September, 2004, in full and final settlement of all claims by your client against all the defendants in the proceedings to the above action and is strictly without admission of liability. The Roche defendants will also pay the costs of the other defendants to be taxed in default of agreement.”

The defendants also disputed whether the plaintiff’s (very considerable) expenditure on research and explorations of scientific literature are properly classed as special damages, preferring to regard them as costs to be recovered or not at the discretion of the Taxing Master.

Statutory background.
Part IV of the Civil Liability Act 1961, is entitled “Fatal Injuries”. Both sides to this motion rely on the terms of the sections constituting this Part in support of their respective claims. It is accordingly convenient to set out part of these sections here.

Section 47 relates to definitions. Section 48 states as follows:-
“(1) Where the death of a person is caused by the wrongful act of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependents of the deceased.

(2) Only one action for damages may be brought against the same person in respect of the death.

(3) The action may be brought by the personal representative of the deceased or if at the expiration of six months from the death there is no personal representative or no action has been brought by the personal representative, by all or any of the dependants.

(4) The action by whomsoever brought, shall be for the benefit of all the dependents.

(5) The plaintiff shall furnish the defendant with particulars of the person or persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.

(6) The action shall be commenced within three years after the death.”

Section 49 states:-
“(1)(a) The damages under section 48 shall be –
(i) the total of such amounts (if any) as the judge shall consider proportioned to the injury resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, and

(ii) subject to paragraph (b) of this subsection the total of such amounts (if any) as the judge shall consider reasonable compensation for mental distress resulting from the death to each of such dependants.

(b) The total of any amounts awarded by virtue of sub-paragraph (ii) of paragraph (a) this subsection shall not exceed €20,000.

(d) Subparagraph (ii) of paragraph (a) of this subsection shall have effect only in respect of a death occurring within three years after the passing of this Act.
(2) In addition, damages may be awarded in respect of funeral and other expenses actually incurred by the deceased, the dependants or the personal representatives by reason of the wrongful act.”

The remaining subsections are not relevant.

Staying, rejecting, or restraining proceedings.
The Roche defendants, as the plaintiff has trenchantly pointed out, have not taken any of the specifically recognised procedural steps open to a defendant in their position (that is, one willing to pay the entire of the plaintiff’s claim) and set out in the Rules. Specifically the defendants have not either lodged money in court nor made a tender. The plaintiff points out that, even if they had lodged money in court they would not have been in a position to compel the plaintiff to take up the money in settlement of the proceedings, other than by threatening him with adverse consequences in costs if he failed to “beat the lodgement”. Since the Roche defendants are certainly prepared to part with what they regard as the full value of the plaintiff’s claim, it seems inescapable that their reason for not lodging is that they do not believe that the plaintiff would take up the lodgement but that he would continue with the action.

However, the fact that the Roche defendants are compelled to invoke the inherent jurisdiction of the Court in circumstances for which they admit there is no direct precedent in the case law, does not mean that the Court lacks an inherent jurisdiction to stay, reject or restrain proceedings on the ground that they have become pointless. The most recent Irish authority in this connection arises in the different context of Henderson v. Henderson (1843) 3 Hare 100 abuse of process. That relates to a situation in which a party seeks in a new proceeding to agitate a point which he could have, but did not, agitate in previous proceedings. That is not this case, but the statements of principle supporting the existence of Henderson abuse of process are not without relevance. They were, as it happens, considered in some detail by this Court in A.A. v. Medical Council [2003] 4 IR 302. There, at p.316, the Court favoured the approach of Lord Bingham in Johnson v. Gore Wood & Co. Ltd. [2002] 2 A.C.1 where he said at p.31:-
“… a broad merits based judgment which takes account of the public and private interests involved and also takes account of all facts of the case, focussing attention on the crucial question of whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

I would adapt that citation to the facts of this case by substituting for the last phrase “… by seeking to raise before it an issue whose resolution would be otiose, improper or oppressive”

In that case, the Supreme Court also cited with approval a dictum of Lord Bingham in Gairy v. Attorney General of Granada [2002] 1 AC 167. There, speaking of the power of the Court to intervene to stop or restrain proceedings he stated at p.181 that the principles on which the courts acted are:-
“… rules or Justice, intended to protect a party (usually, but not necessarily a defendant) against oppressive and vexatious litigation.”

This Court continued in A.A. at p.317:-
“Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of it is exercising his right of access to the courts for determination of his civil rights or liabilities.”

Notwithstanding this, the Court in that case found against the applicant on the basis that he might have raised the point which he was seeking to agitate (a lack of legal aid for a person such as himself in proceedings before the Medical Council) in previous proceedings which he had taken against the Council. But he did not do so with the result that the resolution of the complaints against him had been significantly delayed.

The Court went on to consider certain cases from the European Court of Human Rights on the limitation of access to the courts. In Ashingdane v. United Kingdoms (1985) 7 EHRR 528 at p.546 the European Court of Human Rights said:-
“… the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals.”

Considering the nature of permitted limitations on the right of access to the courts, the same Court said in Tinnelly and Sons Ltd. & Ors. v. United Kingdom (1999) 27 EHRR 249 at p.271, quoting from the judgment of Fayed v. United Kingdom (1994) 18 EHRR 393:-
“… a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the ends sought to be achieved.”

Against that background, I propose to consider the issues in the present case.

The Roche defendants case.
On behalf of these defendants Mr. Maurice Collins S.C. said that this case featured an open offer. It was not, he conceded a “Calderbank” offer, and neither was it a tender or lodgement. He agreed that the lodgement/tender process had been in existence for a long time but said that its consequence is ex poste facto because the issue as to costs can only arise subsequently, after judgment. The effect of such procedures, said Mr. Collins, is to penalise a plaintiff who rejects a proper offer, even one tendered without admission of liability. That fact, said Mr. Collins, tended to suggest that there was not an unqualified right of access to the courts. If there were it would be improper to penalise a party for refusing to accept a proper offer.

Mr. Collins went on to submit that this case is “quantifiable to a unique degree”. This was because the proceedings were neither more nor less than a statutory action in which statute (s.49 of the Act of 1961) provided for all the damages which could be recovered. This must necessarily imply that the plaintiff’s right to litigate was qualified: he had a right to litigate only to recover the sums which, by statute, were all that could be awarded to him. This is precisely the same principle as underlies the lodgement procedure, Mr. Collins contended.

Mr. Collins said that he was relying both on the inherent jurisdiction of the Court to strike out reject or stay an action and on the proposition that the proceedings, if continued, would be an abuse of process. But he wished to emphasise that his clients were not alleging an abuse of process in the sense of an improper purpose or ulterior motive. There was none such in the present case, he conceded.

The principal authority relied upon by Mr. Collins was McSorley v. O’Mahony (unreported, High Court, Costello J., 6th November, 1996). This was a case where the plaintiffs sought to sue the defendant, their former solicitor, in respect of, inter alia negligence and breach of contract in relation to the purchase of a property from Cork Corporation. However, they had in previous proceedings had recovered appropriate damages for their misfortunes from Cork Corporation in relation to the attempt to purchase the property from another party. In those circumstances, the proceedings against Mr. O’Mahony were stayed. The learned judge said at pp 20 and 21:-
“In my opinion this action should be stayed on the ground that it is vexatious and an abuse of the courts process. When instituted the cause of action arose from Mr. O’Mahony’s alleged wrongful act in refusing to hand over the title deeds to the premises so that the sale could be completed. That cause of action no longer exists and only the question of costs remains to which I will later return. The second cause of action is the claim for damages arising out of the purchase of the Pearse Square premises. The plaintiff can obtain no benefit from maintaining these proceedings for the purpose of obtaining an award against the defendant. The Cork Corporation is not insolvent and can pay the damages already awarded by the High Court or as may be found by the Supreme Court should the appeal proceed and be successful. It is an abuse of the process of the courts to permit the court’s time to be taken up with litigation which can confer no benefit on a plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a defendant and which can confer no gain on the plaintiff.”

This, indeed, is a compendious statement of the principles upon which the Roche defendants rely. Mr. Collins submitted that the present proceedings are vexatious and an abuse of process because the plaintiff can obtain no benefit from maintaining proceedings “for the purpose of obtaining an award against the defendant.”

Mr. Collins stated, however, that the plaintiff was obviously desirous of having a determination of liability apart from any question of damages. That is, in statutory terms, he was desirous of obtaining a finding that the death of Liam Grant Junior had been caused by the wrongful act of the defendants or some of them. Mr. Collins conceded that the statute spoke in terms of a death caused by a wrongful act of another person but he said that that was merely a statutory precondition to obtaining an award of damages and the plaintiff’s action in maintaining the proceedings after it had been offered the full measure of damages amounted to turning a statutory precondition into an end in itself. He could not do this because it is an abuse for precisely the reasons given by Costello J. in McSorley. Nor was there any other form of independent action that could be brought for the same purpose, said Mr. Collins.

Mr. Collins said that the values which should move the court to stay these proceedings were precisely those underlining the distinction between a public and a private inquiry. This was a private law action. In a submission which was central to his case Mr. Collins said that “Private law is wholly about what financial remedy is available. It was about obtaining what was called in McSorley a “tangible benefit” for the plaintiff and it was about absolutely nothing else. In further discussion of the topic, Mr. Collins agreed that there was no authority for these propositions but he said they followed inevitably from first principles. In a case such as this, said Mr. Collins, damages are not only the prime concern, they are the only legitimate concern. Insofar as the law might be conceived as having a social role (this possibility had been mooted in argument by the Chief Justice) that role was wholly a matter for “criminal or regulatory law”. Mr. Collins was anxious to stress that he was relying on the test, derived from McSorley of there being “no tangible benefit” to be got from pursuing the action. He was not relying on the proposition that the proceedings were “completely outside the ambit” of the statutory provision which gave rise to them, another well established ground for staying proceedings.

The plaintiff’s case.
On behalf of the plaintiff, Mr. Paul Burns S.C. said that the plaintiff was seeking the vindication of personal rights in accordance with Article 40.3.3 of the Constitution. One way in which the State met its constitutional obligation to vindicate those rights was by the provision of suitable forms of civil action. There was no authority for the proposition that this role is in some way limited to criminal law. The role of a civil action is more than the allocation of damages; it is one of the ways in which rights are vindicated. The terms of s.48 (1) of the Civil Liability Act 1961 meant that an action under Part IV was, amongst other things, an inquiry into accountability for the death because damages could only be awarded “where the death of a person is caused by the wrongful act of another.” Mr. Burns submitted that the Act had to be viewed in the context of the Constitution and, nowadays, of the European Convention on Human Rights. The constitutional and convention provisions relied on are set out below. Mr. Burns pointed out that “there has to be a mechanism” for the vindication of the rights provided in those sources and that any such mechanism must provide for:
(i) A judicial process which
(ii) Featured a determination of liability, and;
(iii) A pronouncement of liability.

Having regard to the fact that a coroner’s inquest, pursuant to the Coroner’s Act 1962, was specifically prohibited by statute from blaming or exonerating any person in relation to a death, it was clear, said Mr. Burns, that the Oireachtas regarded Part IV as providing for these matters.

Mr. Burns indignantly enquired “Where’s the justice of the situation?” This point, though somewhat rhetorically raised, is not of course one which the Court can ignore. Mr. Burns referred to the State’s obligation “in the case of injustice done” to vindicate, inter alia, the right to life of all citizens including the late Liam Grant Junior. How is this to be done if the State provides no mechanism for enquiring into liability except as a precondition to an award of damages. If such a procedure could be bought off by simply paying the very restricted amount permitted by way of damages in those circumstances, that would be, submitted Mr. Burns a “rich man’s charter”, to subvert the vindication to the right of life.

In this connection, Mr. Burns relied on Powell v. United Kingdom (2000) 30 EHRR CD 362 a judgment of the European Court of Human Rights of the 4th May, 2000. There, relatives of a deceased child complained that United Kingdom Law provided for no adequate investigation into their child’s death. But the Court referred to the fact that they had settled a civil action for wrongful death in the following terms at p.CD. 365:-
“Of greater significance for the Court is the fact that the applicants settled their civil action in negligence against the responsible health authority and did not pursue individual claims against the doctors. In the Court’s opinion, the applicants by their decision closed another and crucially important avenue for shedding light on the extent of the doctor’s responsibility for their son’s death”.

The Court continued at p.CD365 that:-

“Having regard to the above considerations, the Court finds that it is not open to the applicants to complain under Article 2 of the Convention that there was no effective investigation into their son’s death. In its opinion, where a relative of the deceased accepts compensation in settlement of a claim based on medical negligence he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried out into his or her death.”

Mr. Burns submitted that that passage clearly indicated that the civil proceedings were seen as part of the State’s machinery (which was obliged to provide under the Convention) for “shedding light on the extent of the doctor’s responsibility,” i.e. responsibility for the death.

Mr. Burns also relied on the decision of the English Court of Appeal in R (Takoushis) v. Inner North London Coroner [2006] 1 WLR 461 at p.493:-
“… where a person dies as a result of what is arguably medical negligence in an N.H.S. hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state, but may include such investigation. Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process satisfies the requirement of article 2 as identified by the European Court in cases to which we have referred, namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability”. (Emphasis added)

Having regard to the fact that one of the defendants is the Irish Medicines Board, a State statutory body charged amongst other things with the investigation and approval of the medicines to be used in medical practice in the State, Mr. Burns submitted that the obligations of the State in relation to the death of Mr. Grant Junior are those described in these passages. He emphasised that both the English and the Strasbourg jurisprudence is quite inconsistent with regarding the civil proceedings as purely a money distributing exercise and, on the contrary, they are regarded (at least where there is a public element involved in the circumstances leading to the death) as part of the investigatory process to which the deceased’s relatives are entitled, as is the “determination of civil liability.”

Secondly, Mr. Burns submitted that the question of whether the very considerable expenses incurred by the plaintiff in the investigation of the circumstances of his son’s death are recoverable, or are recoverable as special damages as opposed to under the heading of costs, is itself a justiciable issue.
Mr. Burns addressed the case of McSorley upon which Mr. Collins had principally relied. He said, firstly, that the death of a human being, which was what is in question here, was quite a different proposition to the allegedly defective execution of a conveyancing transaction. There was, at least in Convention jurisprudence, an established right to a proper inquiry in the former case. In any event, he pointed out, in McSorley there had already been a full hearing on the merits. What was in issue there was a multiplicity of proceedings. This did not arise here: the Roche defendants were attempting to abort the only hearing which, on their own case, there could ever be.

Finally, Mr. Burns emphasised strongly that the present application took no recognised form but was “made up”. He also emphasised, which is obvious, that the lodgement procedure could not abort the proceedings: it merely put the plaintiff on a considerable risk if he was overoptimistic on liability or overvalued his claim. That was a balancing of the rights, public and private, which are involved in civil litigation. But what was proposed here was a total destruction of the plaintiff’s rights, not a balancing. Mr. Burns accepted that there was a public interest as well as a private interest in litigation and that there were many circumstances in which it was proper for the courts to stay or strike out proceedings. But this case, said Mr. Burns, was a case of a real controversy which should be litigated in the public interest as well as in the Grant family’s private interest.

Reply.
In reply, Mr. Collins S.C. invited the court to start its deliberations with a question: what does the section provide? The answer, he submitted was “damages” for the relatives of the deceased. In other words, the section provided an action for the recovery of damages and for nothing else.

He submitted that the money spent on scientific investigation was clearly not special damages but costs. Returning to his main theme he said that s.48 of the Act of 1961 did not provide for an investigation but was merely a precondition to the recovery of damages. He said that sections 48 and 49 simply are not capable of being interpreted in any other way.

In another important submission, Mr. Collins submitted that the Roche defendants “are not caught by Article 2 (of the Convention) because they are not a public body”. The Convention, he said, as applied to this case was merely a “cul de sac”.

Finally, Mr. Collins acknowledged the existence of the lodgement rules and the fact that they had not been operated by his clients in this case but said that the feature was not conclusive.

The High Court judgment.
In his judgment of the 27th May, 2005, Finnegan P. (as he then was) may be said to have found the following:
(a) An award of damages is not the only object of a claim;
(b) There is a jurisdiction to strike out proceedings for abuse of process occasioned by the institution or maintenance of an action without cause or for some improper or wrongful motive;

(c) The plaintiff in this case wishes to establish that the death of his son was caused by the wrongful action of the defendant. Consequently, he is not seeking to “effect an object not within the scope of the process”;

(d) As the determination of liability is one of the objects of the proceedings, and as there is no admission of liability, the plaintiff is not acting in abuse of process;

(e) The plaintiff’s right of access to the courts is constitutionally guaranteed;

(g) A risk that the defendant might not recover his costs against the plaintiff is not a factor to be taken into account;

(h) The constitutional rights of the plaintiff take precedence over the consequences in terms of costs for the defendant;

(i) No costs/benefit analysis should be carried out;

(j) The Irish system of procedure penalises in costs a plaintiff who fails to accept a sufficient sum paid into court or tendered.

Decision.
(a) The Court’s approach.
For the reasons set out earlier in this judgment, there is no doubt that a court has a jurisdiction, in a suitable case, to restrict access to the courts by striking out, rejecting or restraining a claim which is pointless, vexatious, or an abuse of process. The case of A.A. v. Medical Council, cited above is an example of such a case.

Although the point is not significant in this case, I do not see any reason to consider that this entitlement is limited to the Superior Courts bur rather consider that it applies to any court properly seized of a dispute. But this issue was not fully argued.

In the case of Barry v. Buckley [1981] I.R. 306 it was held at p.308 that this inherent jurisdiction to strike out is one that should be “exercised sparingly and only in clear cases”.

In Sung Fat Chan v. Osseous Ltd. [1992] 1 IR 425 McCarthy J. said at p.428:-
“Generally, the High Court should be slow to entertain an application of this kind and grant the relief sought. Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages of the proceedings.”
I believe that any lawyer of experience would endorse the dictum just cited of McCarthy J. It is clear from a brief perusal of the documentation gathered in the present case that material whose existence could hardly have been suspected at the time of the institution of the proceedings has in fact come to light.

In D.K. v. King [1994] 1 I.R. 166 Costello J. emphasised that the Court should be reluctant to strike out a case at an interlocutory stage and that in deciding whether to do so a court should not adjudicate on questions of fact or controversial legal issues raised by those proceedings. It should confine itself to considering whether the issues raised were frivolous or obviously unsustainable. To the same effect is the judgment of Murphy J. in Conlon v. Times Newspapers Ltd. [1995] 2 I.L.R.M. 76. There, the learned judge contrasted an application during a trial to withdraw a case from the tribunal of fact and an interlocutory application to have the same action struck out. He stated at p.80:-
“It does seem to me that the preference in any case should be that unless these matters [i.e. that the plaintiff’s claim is clearly unsustainable or that it is bound to fail] are clearly established, that a plaintiff in every case should be afforded the opportunity of having his case fully heard by a judge and more particularly, a jury, where that is an appropriate remedy”.

The case of A.A. v. Medical Council has been already cited in this judgment, including a general statement to the effect that the Court’s inclination must be to permit a plaintiff to exercise his right of access to the courts. In a similar vein, Murray J. (as he then was) said in Jodifern Ltd. v. Fitzgerald [2000] 3 IR 321 at pp.334 and 335:-
“It seems to me that if on the basis of the undisputed facts there remains a a substantial issue or issues of law as to whether the plaintiff is entitled to some or any of the relief’s sought, the proceedings can hardly be said to constitute an abuse of the process of the Court. It may indeed be that since the factual issues are the basis of the plaintiff’s claim has been identified, that the legal issues arising are susceptible of judicial determination. For this reason it may be tempting, in the interest of economy of litigation, to do just that. However, to proceed (at least in the absence of agreement between the parties) to make a final determination of such issues in an application to stay or dismiss proceedings for abuse of the process of the court “would deprive the plaintiff of the due process of plenary proceedings before the court.”

It would clearly be wrong for this Court, hearing an appeal from a decision on an interlocutory motion, to express any opinion on the merits or likely outcome of the case. However the Roche defendants’ action in bringing this motion compels and permits me to say that, on the basis of the information before the Court, I do not consider that the plaintiff’s claim is clearly unsustainable or that it is bound to fail. I am compelled to add, for the plaintiff’s attention (for it will be clear without further explanation to his lawyers) that this state of mind is as far as can be from a belief that the plaintiff is bound to, or likely to, succeed. It is simply not possible to come to this conclusion. If the plaintiff’s action is permitted to proceed he will be taking on difficult proofs against a well resourced and determined group of defendants in the Roche Companies who have every reason to resist his claim. He is taking on a considerable risk, hard to quantify precisely at the moment, and risking enormous financial losses but I could not hold, on the evidence before us, that his claim is bound to fail, which is one of the established grounds on which a claim can be dismissed at this stage.

Abuse of process?
Firstly, there can be no doubt that the onus of establishing abuse of process is on the defendants who seek to stay the proceedings because of it and this onus is “a heavy one”. (See Goldsmith v. Sperrings Ltd. [1977] 1 WLR 478, per Lord Denning M.R. at p.498):-

Secondly, the classic and long established definition of an abuse of process is that of Isaacs J. in Varawa v. Howard Smith Company Ltd. (1911) 13 C.L.R. 35 at 91:-
“In the sense requisite to sustain an action, the term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court has asked to adjudicate, they are regarded as an abuse of process for this purpose…”
This dictum was adopted by the High Court of Australia in Williams v. Spautz (1992) 174 C.L.R 509. In that case, Brennan J. said:
“… if there be a reasonable relationship between the result intended by the plaintiff and the scope of the remedy available in the proceeding, there is no abuse of process. If there be mixed purposes – some legitimate, some collateral – I would restate his Lordship’s test [i.e. Bridge L.J. in Goldsmith] that ‘but for his ulterior purpose, [the plaintiff] would not have commenced proceedings at all.’ So expressed the tests cast on the other party an onus of proving what the plaintiff would not have done if he had not formed the intention of obtaining a collateral advantage. That onus may be impossible to discharge”.

In the present case, as is set out in the summary of the appellant’s arguments earlier in this judgment, the Roche defendants have disavowed the Varawa test. I believe that they had no option but to make this concession. Having regard to the terms of s.48 of the Act of 1961 I cannot see how an intention of establishing that the death of the deceased was caused by the wrongful act of the defendants could be described as “outside the ambit” of the legal claim created by the statute. It was further expressly conceded that the plaintiff here has no ulterior or improper purpose.

Instead of this traditional and well established test, the Roche defendants say that they can meet the less onerous test derived from the judgment of Costello J. in McSorley, cited above. This is the test that there is quite simply “no tangible benefit” which the plaintiff can hope to gain by pursuing the proceedings. They are therefore, it is submitted, pointless and thus an abuse of process. In another sense they are moot by reason of this lack of tangible benefit.

I cannot hold that a determination as to whether the death of the deceased was caused by the wrongful act of the Roche defendants, or any defendants, will not confer a tangible benefit on his father, the plaintiff, and those others for whose benefit the action is brought. It is quite contrary to any holistic view of human nature to fail to acknowledge that each and every one of these people will benefit from a resolution of the suspicions which they clearly hold, that the deceased was led to take his own life by the ingestion of a prescription drug known or believed to be associated with grave adverse psychiatric consequences. Moreover, where a very young man has died by his own hand, there is a manifest benefit to his father and other relatives in establishing, if it be the case, that his death had an exogenous cause and was not the result of a free decision on his part. The overwhelming majority of humanity, including the “reasonable man” beloved of the law, would recognise this instinctively and in my view correctly.

Article 40.3.2
I consider that Mr. Burns S.C. is self evidently correct in his submission that the construction of Part IV of the Act of 1961, like any statute, must be approached in the context of the Constitution. The plangent words of Article 40.3. in relation to the right to life are almost too well known to require quotation:
“(1) The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

(2) The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”

This appears to me to require that the right to life of each individual citizen, including the late Liam Grant Junior, be vindicated. Since he is unfortunately deceased in circumstances alleged to amount to a statutorily actionable injustice, it appears to me that his right to life can be vindicated only by hearing, in accordance with law, the plaintiff’s statutory claim that his son’s death was caused (in the words of the Statute) by the “wrongdoing” of the defendants’ and accepting or rejecting that proposition after a proper hearing. It is this hearing of an established statutory form of action that the Roche defendants seek to prevent. It is however the only legal step capable of providing vindication for an alleged injustice “by its [i.e. the State’s] laws”.
The foregoing appears to me to follow from an analysis of the constitutional article quoted above, both in its primary, Irish language, formulation and in English. It will first be noted that the obligation to “vindicate” the life of the citizen arises “in the case of injustice done”. Accordingly, the word “vindicate” has to be construed if possible in a manner which connotes an appropriate response to an “injustice”. That injustice is alleged to be the bringing about of the death of the deceased by an act of “wrongdoing”, to quote the statutory phrase. There is in fact no difficulty in so construing the term, if one has regard to the ordinary and natural meaning of the word “vindicate” as set out in the Oxford English dictionary. There, the word, which is a transitive verb, said to derive from the Latin vindicare which is defined as meaning to claim, to set free, to punish, or to avenge. The English term is given the following meanings:
– avenge, revenge,
– take revenge (on a person) for a wrong,
– claim, assert, or establish the possibility of,
– clear of blame, justify by evidence or argument,
– establish, assert, or maintain,
– defend against encroachment or interference.

In this light, it seems to me that, a proper construction of the Article involves a consideration of the primary or Irish language version as well as the English text. In this connection I wish to acknowledge the invaluable assistance to be derived from “Bunreacht Na hÉireann, a study of the Irish text” by Mr. Michéal Ó Cearúil, (The All-Party Oireachtas Committee on the Constitution, The Stationary Office, Dublin 1999). This remarkable feat of scholarship is indeed, in Tennyson’s phrase, “a work of noble note”. The author points out that the matter expressed in English as “and, in the case of injustice done, vindicate…” which is found in the middle of the English subsection, is found at the end of the Irish version where the same thought is expressed as “agus iad a shuíomh i gcás éagóra” which means “and vindicate them in case of injustice”. The pronoun “iad” (them) refers to “beatha agus parsa agus dea-chlú agus maoinchearta an uile shaoránaigh” (the life and person and good name and property rights of every citizen).

Here, attention must focus on the use of the term “a shuíomh”, translated as “vindicate”. It will be noted that the same word is used in the preceding sub-Article, 40.3.1, where it is translated by Mr. Ó Cearúil, literally, as “assert”. The word may also be found in Article 12.3.1: 12.10.7 and 14.1, where it expresses the notion “is established” or “shown”.
The official publication Téarmaí Dlí, translates “Cúis, ceart, a shuí” as “to establish a case, a right”. Dinneen’s dictionary translates the term as “I set, plant, arrange, dispose, prove, certify, establish, or station (as guards)”. Other meanings cited in Mr. Cearúil’s work include “fixes, assesses, imposes”, the latter term specifically of laws or legal consequences.

In light of the foregoing, and bearing in mind the primacy of the Irish text in the event of deviation, it seems to me that the term “a shuíomh” or “vindicate” is best rendered, and in a manner which is harmonious as between the Irish and English versions, by a combination of two of the Oxford English Dictionary definitions those of “defend against encroachment or interference” and “clear of blame, justify by evidence or argument”. If this meaning is applied to a process which is intended to be a remedy or vindication for an injustice, then it seems to me to require the three characteristics of vindication which were asserted by Mr. Burns in this case i.e.:
“(i) A judicial process which
(ii) Featured a determination of liability and
(iii) A pronouncement of liability.”

It will be noted that, by the terms of the Article quoted, the function of protection or vindication which was imposed as obligations of the State is to be “carried out by its laws”. It is, therefore, to the body of law in force in the State, i.e. statute law, common law, and law deriving from any other legitimate source such as the European Convention on Human Rights, that one must look to for the mechanism of vindication. It is, accordingly, necessary now to turn to Mr. Collins’s contention that such vindication cannot be found in the civil law of the State, in this case the law of tort, but must be sought exclusively in the “criminal or regulatory law”.

I wish specifically to reject a central proposition upon which the Roche defendants relied, that the vindication of personal rights is a matter only for the “criminal or regulatory” law and not civil law. This highly artificial distinction has no basis in the Constitution or in the law itself. Above all, it does not conduce to justice which, by Article 34.1 of the Constitution is what the courts are to administer. On the contrary, it has been recognised at least since Meskell v. Córas Iompair Éireann [1973] I.R. 121 at pp.132 and 133 that constitutional rights are capable of enforcement by action, “even though such action may not fit into any of the ordinary forms of action in either common law or equity” thereby plainly and necessarily establishing that the ordinary forms of action may be used to enforce such rights where possible. Still more explicitly than the dictum of Walsh J. quoted above is that of Henchy J. in Hanrahan v. Merck Sharpe and Dohme (Ireland) Ltd. [1988] ILRM 629 when he said at pp. 635 and 636:-
“I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under those provisions Article 40.3.1 and Article 40.3.2 of the Constitution as to the personal rights and the property rights of the plaintiffs as citizens.”

This is an absolutely express statement of the role of the law of tort in implementing the State’s duties under Article 40.3 and the personal rights Articles of the Constitution.

In a discussion of the “Role of the Law of Tort in the protection of constitutional rights (in Hogan and White, J.M. Kelly: The Irish Constitution, 4th Ed. (Lexis Nexis, Butterworths 2003) at p.1313, it is considered that “… the courts may either modify the definition of a tort or permit the plaintiff to sue directly for infringement of constitutional rights”. It may take this novel step “where an existing tort is ineffective to protect constitutional rights…”.

There is thus authority both judicial and academic for the proposition that the law of tort is, at least in certain circumstances, an important tool for the vindication of constitutional rights, and no authority whatever for the proposition that it is concerned exclusively for the allocation of damages and with nothing else whatsoever. That contention, as we have seen, was central to a defendant’s case in this motion.

Indeed, it seemed to me as the argument went on that the Roche defendants’ case on abuse of process gradually refined itself almost out of existence. As we have seen, Mr. Collins declined to rely on the Varawa test because he conceded that the object of the plaintiff in maintaining these proceedings could not be described as “completely outside the ambit of the statutory claim.” But equally, Mr. Collins wished to emphasise that his clients, the Roche defendants, were not alleging any improper purpose or ulterior motive against the plaintiff, Mr. Liam Grant Senior. In doing so, it appears to me, the Roche defendants debarred themselves from relying on another traditional species of abuse of process, an ulterior improper or collateral motive. They were therefore driven to advance two alternative arguments. The first was that this action was a private law action and private law is wholly concerned with what remedy is available: it is concerned with nothing else whatever. Secondly, they relied on the “no tangible benefit” argument which they said arose from the judgment of Costello J. in the McSorley case.
I have already indicated that I would reject the view that civil, as opposed to “criminal or regulatory” law has nothing to do with the implementation of the State’s duty to vindicate personal rights. I believe it to be absolutely contrary to established authority and to the opinion of the legal academic exponent of the Constitution, the late Professor Kelly. I have already discussed to some extent the McSorley case, in the course of summarising the arguments for the Roche defendants, above. I wish to say by way of summary that that was a case where, in the plaintiff’s view, there were two concurrent wrongdoers, Cork Corporation and Mr. O’Mahony, Solicitor. They sued the first of these and obtained an order for the payment of a specific sum with which they were apparently dissatisfied. They then proceeded to sue the other alleged concurrent wrongdoer in the hope, apparently, of getting a larger bite of the cherry. In my view, the form of abuse exhibited on those facts is abuse by multiplicity of proceedings. I believe that the facts of the McSorley case provide no useful analogy whatever to those of the present case. Here, the plaintiff, so far from multiplying proceedings, has sued seven defendants in the one set of proceedings, which in my opinion is proper procedure on his part.

I also wish to reiterate that I do not accept that the finding that a death was caused by the wrongful act of another person is a finding which confers no tangible benefit on the relatives of the deceased, in circumstances such as the present, for the reasons set out above.
Expenditure.
We have already seen, in the quotation from the Act of 1961, that a person entitled to sue for the wrongful death of another may recover funeral expenses and “other expenses actually incurred”. There is, in my opinion, a bona fide and justiciable issue between the parties as to whether the considerable and expensive research engaged in by the plaintiff preparation for the inquest into the deceased’s death is expenditure recoverable under the statute. It is clearly expenditure which would not have arisen but for the death of the deceased and which was foreseeable and appears to me, at least arguably, thus to be recoverable. The plaintiff’s case may derive some support on this point from the judgment of Barington J. in Condon v. CIE & Ors. (unreported, High Court, Barrington J., 16th November, 1984). But I do not intend to decide this issue or to consider the cases cited on it, for the reasons given by Costello J. in D.K. v. King, cited above. It is sufficient to say that the existence of that or any other justiciable issue between the parties in my view of itself would preclude an order striking out the proceedings at present.

Conclusion.
I would dismiss the Appeal and affirm the Order of the High Court.

Brennan v Iarnród Éireann and Ors

[1993] ILRM 134
Barr J his is an application by the defendants, all of whom are now represented by the same solicitors, to make a lodgment and amend their defences accordingly, though time for so doing has expired.

I have been informed by counsel that representatives of the parties have met on two occasions and negotiations have taken place in an effort to settle the plaintiff’s claim. In that connection the plaintiff’s solicitor furnished to the solicitors for the defendants copies of all medical reports in his possession relating to the plaintiff’s injuries. A settlement did not emerge and the *135 defendants now wish to have the leave of the court to make a late lodgment. In my view it would be unfair to the plaintiff to accede to that application. Bona fide settlement negotiations in personal injury actions are often in the best interest of the parties and are to be encouraged. They require candour by all concerned and an exchange of medical reports is part and parcel of the process. It seems to me that if such negotiations are unfruitful, the defendant ought not to be allowed to capitalize on the plaintiff’s full disclosure of his or her case as to personal injuries and/or on liability, and to use the information obtained in such negotiations as a measure for calculating what is intended to be a tight lodgment. If, in the absence of special circumstances, defendants were allowed to make or amend lodgments after unsuccessful settlement negotiations of that sort then two undesirable consequences might follow. First, it may cause plaintiffs and their advisers not to expose fully their situation as to personal injuries and/or liability in early settlement negotiations with defendants in case they may find themselves providing the basis for lodgments which might be more dangerous from the plaintiff’s point of view than otherwise might have been the case. Secondly, it could encourage some defendants or their indemnifiers to enter into spurious settlement negotiations, the actual purpose of which is to ascertain comprehensive information about the plaintiff’s case with a view to making a late lodgment based thereon.

There are circumstances where, in fairness to the defendant, the court should exercise its discretion in favour of allowing a late lodgment notwithstanding a full disclosure of the plaintiff’s case in course of unsuccessful settlement negotiations. For example, where it emerges for the first time during such negotiations that the plaintiff’s injuries, or the sequelae thereof, are more serious than pleaded on his behalf. It is not suggested in the instant case that the plaintiff’s injuries have transpired to be different or more serious than indicated in the particulars pleaded. The only explanation in support of the application put forward by Mr O’Connor in his grounding affidavit is that he now acts for the second as well as for the first and third defendants and that liability is no longer in issue. The plaintiff’s claim against all defendants is that she was savaged by a guard dog as she alighted as a passenger from a DART train. The dog was on the train in the ostensible care and control of a security guard being an employee of the third defendants. It is not contended that it was ever perceived by Mr O’Connor or his clients that they or any of them ever had a good defence to the plaintiff’s claim. It does not seem to me that there are sufficient grounds for permitting a late lodgment and I refuse the application with costs to the plaintiff.

Kearney v Barrett and Ors

, unreported, High Court, December 17, 2003

Judgment of Mr Justice Michael Peart delivered the 17th day of December 2003:

This is an application made by the plaintiffs by way of Notice of Motion dated 7th November 2003 seeking an order striking out the Notice of a Tender Offer made herein by the defendants on 22nd August 2003.

This notice of motion is grounded upon an affidavit of John Shaw solicitor, sworn on the 9th day of October 2003. In his affidavit Mr Shaw states that some negotiations took place between the parties on 9th June 2003 in an effort to try and reach a settlement of this action. The negotiations were unsuccessful.

However Mr Shaw states that during the negotiations various aspects of the plaintiff’s case were weighed between the parties in relation to its strength and/or weakness, and he states that very significant prejudice has been caused to the plaintiffs in this case because of some concessions which were openly made by the plaintiffs’ counsel, which concessions concern the value of the case.

The negotiations took place, as I have stated, on 9th June 2003 and on 22nd August 2003 a Notice of Tender Offer in the sum of €100,151 was served by the defendants. Mr Shaw states that it has always been his view that unless the defendants, when they attend settlement negotiations, reserve their position to put in a lodgment or make a tender, they may not do so after unsuccessful negotiations have taken place.

He states in his affidavit that it is one thing to show a party’s hand in the course of negotiations, but that it is another thing for that to be used thereafter by the other side for the purpose of calculating a tender and then making that tender. He submits in his affidavit that as a matter of public policy defendants ought not to be allowed to take advantage of the plaintiffs in his manner after settlement negotiations have taken place, but which proved unsuccessful, and states that in this particular case very significant prejudice has been caused to the plaintiffs because of the concessions which were openly made at the negotiations on behalf of the plaintiffs concerning the value of the case and the reasons for that value.

He also states that if the plaintiffs had realised that following the negotiations a tender offer was going to be made, the negotiations would have been much more circumspect in the way they were conducted. He goes on to say that if the defendants, at the negotiations, had specifically reserved the right to make a lodgment or tender following any unsuccessful negotiations, he would have advised the plaintiffs not to proceed with such negotiations and to allow the defendants make whatever settlement proposals they had but without any input from the plaintiffs at the negotiations.

A replying affidavit sworn the 25th November 2003 by Mr Fergal Dennehy has been filed. He is the solicitor acting on behalf of the defendants. He states that in April 2003 he wrote to the plaintiffs’ solicitors on a without prejudice basis asking whether they would be interested in meeting with a view to possibly compromising these proceedings, and that the plaintiffs’ solicitors responded stating that they had no difficulty with such a meeting provided that they got sight of the defendants’ valuer’s report and their medical reports. The meeting for the 9th June 2003 was then arranged, and Mr Dennehy states that the meeting proceeded on a without prejudice basis. Prior to the meeting the said reports were furnished to the plaintiffs. However Mr Dennehy states in his affidavit that he had also requested that the plaintiffs’ valuer’s report and medical reports be furnished to him, but that the plaintiffs’ solicitor declined to do so, except that prior to the meeting the plaintiffs’ agricultural adviser’s report was furnished, but nothing more. In those circumstances Mr Dennehy states that it was the defendants who revealed their hand in this matter and not the plaintiffs.

He denies that the defendants tried to take advantage of the plaintiff in relation to the negotiations and the subsequent tender offer. In fact he states that before the negotiations with the plaintiff took place, the defendants met amongst themselves and determined to make an offer at the negotiations to the plaintiffs in the sum of €100,000. This was done but that offer was refused. He points to the fact that after the negotiations the tender offer was put in at a sum of €100,151, and that it is clear that in fact no advantage was in fact gained or taken as a result of the negotiations.

In his affidavit, Mr Dennehy goes on to state that he disagrees with Mr Shaw’s contention that once a party enters into without prejudice negotiations with the other side, that party is precluded from thereafter making a lodgment or tender offer, unless they specifically reserve their right to do so. He also points to the provisions of S.I. 391 of 1998 which obliges parties to an action to disclose to each other their experts’ reports, and that clearly any rule there may have been that a party could not make a lodgment after without prejudice negotiations no longer applies. He also states that in fact the plaintiffs did not fully comply with their obligations under that Statutory Instrument until the defendants brought a motion to compel such compliance.

The plaintiffs, through Mr James Connolly SC, make two submissions. Firstly he submits that this Tender Offer is defective, as it has not been made in accordance with what he says is the appropriate rule of the Superior Court Rules for an action of this kind. He submits that this is not an action to which Section 1(1) of the Courts Act, 1988 applies, namely what is known as a “personal injury action”, and that therefore the appropriate rule under which to make a lodgment is Order 22, rule 1, and not, as in a personal injury action, Order 22, rule 7. There is a distinction between these two rules as to the time at which such a lodgment can be made.

Order 22, rule 1, sub-paragraph (7), applicable to a personal injury action, it is provided as follows:

“A defendant may once, without leave and upon notice to the plaintiff, pay into court a sum of money in satisfaction of any action to which section 1(1) of the Courts Act, 1988 applies, either at the time of the delivery of a Defence or within a period of four months from the date of the notice of trial. A defendant who has not made such payment within the time permitted or who wishes to increase such sum as has been lodged may only do so by leave of the court and upon such terms and conditions as to the court seem fit.”(my emphasis)
If this action is a personal injury action, then the lodgment made in this case has been made within this timeframe, on the basis that I have been informed that the Notice of Trial is dated 17th July 2003, and Notice of Tender Offer is dated 22nd August 2003, i.e within 4 months of the date of Notice of Trial. I have some doubt in my mind as to whether that Notice of Trial may have lapsed in fact due to the failure to set the action down for hearing within 14 days of the date of that Notice of Trial (see Order 36, rule 18 of the Rules of the Superior Courts), as having raised the question during argument as to whether the action had in fact been set down following service of the Notice of Trial, I do not recall that question being resolved. Under the rule , strictly construed, it would appear that a defendant making a lodgment in a personal injury action must do so at the time he delivers his Defence, and that if he does not do so at that time, he cannot do so as of right until and if a Notice of Trial is served, and then within 4 months thereof, except by leave of the court.

Accordingly in this case, if indeed it is a personal injury action, and if the Notice of Trial had lapsed at the time the tender offer was made due to the failure of either the plaintiff to set the action down for hearing, the defendants have not complied with the strict letter of the rule, and would have required leave of the court to make the tender offer.

On the other hand, if this is not a personal injury action, and therefore an action to which Section 1(1) of the Courts Act, 1988 does not apply, then the tender offer is governed by Order 22, rule 1, sub-paragraph (1) which provides as follows:

“In any action for a debt or damages (other than an action to which section 1(1) of the Courts Act, 1988 applies) or in an admiralty action the defendant may at any time after he has entered an Appearance in the action and before it is set down for trial, or at any later time by leave of the court, upon notice to the plaintiff, pay into court a sum of money in satisfaction of the claim or (where several causes of action are joined in one action) in satisfaction of one or more of the causes of action).”(my emphasis)
In that event, the tender offer is properly made in this case but only if, as may well be the case, the plaintiff has not in fact set this action down for trial. If the case has been set down for trial following service of the Notice of Trial on or about the 17th July 2003, then the defendants could make their tender offer only with the leave of the court. Mr Connolly has argued this point on the basis that the plaintiffs have set the action down for hearing, and that these proceedings are not in truth a personal injury action, even though there is in the proceedings a claim on behalf of the second named plaintiff for damages in respect of personal injuries arising from the matters complained of against the defendants. He has pointed to the fact that it is a negligence/misrepresentation action against a firm of solicitors, which includes on behalf of one plaintiff a claim for damages for personal injuries in the form of stress and anxiety caused by the negligence/misrepresentation.

However, to some extent the point which I have just discussed is of academic interest only, because whichever category of case the present proceedings fall into, any defect in the manner in which the tender offer has been made may be cured by order of this court. The criteria for dealing with any such application for an extension of time which might be granted to the defendants would be those identified in cases such as Ely v. Dargan (1967) IR 89, and including a more recent case of Noble v. Gleeson McGrath Baldwin, unreported (Quirke J.) 19th February 2000, in which late lodgments have been permitted by the court, even where some advantage has been gained by the defendants through unsuccessful negotiations, but on terms which limit the prejudice to the plaintiff by such late lodgment, by the court imposing certain conditions in relation to the plaintiff’s risk as to costs in the event of him not beating the lodgment. Mr Connolly on the other hand has referred the court to decisions such as those in Brennan v. Iarnrod Eireann (1992) 2 IR 167, and Meehan v. Keane, unreported, Supreme Court (Appeal Number 33/1991) the latter upholding a refusal by O’Hanlon J. on 16th December 1991 to permit a late lodgment following negotiations to settle the case.

These cases are also relevant in relation to the other submission made by Mr Connolly, namely that the tender offer is an invalid one and should be struck out by the court, as sought in the Notice of Motion, on the basis that it is inappropriate that it should have been made after unsuccessful negotiations during which the plaintiffs made concessions and showed their hand in a way they would not have done if they had thought that subsequently a lodgment or tender offer would be made.

Mr Connolly has referred the court to a passage from the judgment of Barr J. in Brennan v. Iarnrod Eireann (supra) at page 169 thereof, where the learned judge states as follows:

“In my view it would be unfair to the plaintiff to accede to that application. Bona fide settlement negotiations in personal injury actions are often in the best interest of the parties and are to be encouraged. They require candour by all concerned and an exchange of medical reports is part and parcel of the process. It seems to me that if such negotiations are unfruitful, the defendant ought not to be allowed to capitalise on the Plaintiff’s full disclosure of his or her case as to personal injuries and/or on the liability, and to use the information obtained in such negotiations as a measure for calculating what is intended to be a tight lodgment. If, in the absence of special circumstances, defendants were allowed to make or amend lodgments after unsuccessful settlement negotiations of that sort then two undesirable consequences might follow. First, it may cause the plaintiffs and their advisers not to expose fully their situation as to personal injuries and/or liability in early settlement negotiations with defendants in case they may find themselves providing the basis for lodgments which might be more dangerous from the plaintiff’s point of view than otherwise might have been the case. Secondly, it could encourage some defendants or their indemnifiers to enter into a spurious settlement negotiations, the actual purpose of which is to ascertain comprehensive information about the plaintiff’s case with a view to making a late lodgment based thereon.”
Mr Connolly relies on this passage for his submission that in this case also, the defendants have taken advantage of unsuccessful negotiations in order to assess what the level of their tender offer should be, and that this ought not to be allowed. Ms. Caroline Costello BL on behalf of the defendants, on the other hand, argues that there is no evidence of any mala fides apparent in the defendants’ behaviour in relation to the negotiations which took place as is apparent from the affidavit of Mr Dennehy to which I have referred, in which he pointed out that prior to the negotiations themselves the defendants had already decided that the correct level of offer was €100,000, and that after the negotiations this is in effect the amount which was offered by way of tender offer. She also of course argues that this is an action to which Section 1(1) of the Courts Act, 1988 applies, and that therefore their tender offer is in any event within time under the Rules, whether it was made after negotiations took place or not.

Ms. Costello also submits that Brennan v. Iarnrod Eireann was decided before the introduction of S.I. 391/1998, being the so-called ‘disclosure rules’, under which parties are obliged in any event, in personal injury actions, to make disclosure of their expert reports, including medical reports, and that this has in any event changed the climate in which personal injury litigation is conducted, and this distinguishes the present climate from that which prevailed when the Brennan case was decided, as well as the case of Meehan v. Keane to which I have already referred.

Ms. Costello has also referred to the fact that there is no rule contained in the Rules of the Superior Courts or elsewhere which states that a lodgment or tender offer may not be made after unsuccessful negotiations have taken place, as is contended by Mr Shaw in his affidavit, and by Mr Connolly in his submissions. She maintains that the Rules therefore contemplate the making of lodgments and tender offers after negotiations have failed to resolve the proceedings. She submits that the purpose of the Rules relating to lodgments and tender offers is to facilitate the resolution of proceedings, and that there is no question of it being to prejudice or take advantage of plaintiffs. She submitted that if it was intended that a tender offer could not be made after a plaintiff had made concessions during settlement negotiations, the Rules would have to say that specifically, and they have not done so.

The first matter which I should address is the question as to whether this is an action which comes within the class of action set forth in Section 1(1) of the Courts Act, 1988. That section provides as follows:

“Notwithstanding section 94 of the Courts of Justice Act, 1924, or any other provision made by or under statute or any rule of law, an action in the High Court:
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision);
(b) under section 48 of the Civil Liability Act 1961; or
(c) under section 18 (inserted by the Air navigation and Transport Act, 1965) of the Air Navigation and Transport Act, 1936,
or any question of fact or an issue arising in such an action shall not be tried with a jury.”

That section in effect meant that thenceforth no personal injury action could be tried with a jury. That definition of that category of case was also used for the purpose of determining the manner and timing of a lodgment or tender offer in personal injury actions. The fact that the present case includes claims other than personal injury claims does not appear to me to take the case outside section 1(1) of the Courts Act 1988 for the purpose of determining whether the tender offer must be made under Order 22, rule 1 (1), or under rule 1(7). It is beyond dispute that the present case is “an action in the High Court claiming damages in respect of personal injuries to a person caused by negligence, nuisance, or breach of duty……..”

The fact that only one of two plaintiffs in the action may be so claiming, or the fact that other claims may be included in the proceedings, does not take the case out of the section. It follows in my view that the action comes within Order 22, rule 1(7), in the same way as the action is covered by the disclosure rules provided by S.I. 391/1998. This makes sense given the purpose of those rules, namely that parties should make known to the other side the contents of their expert reports if the experts are to be called to give evidence, in order to avoid trial by ambush. There is a clear intention that in so far as possible each side should be made aware of the other side’s case, both in terms of liability and in terms of quantum prior to the trial hearing, in an effort to effect a saving in costs and in court time by not having cases heard which do not need to be heard. In other words, the rules are designed to encourage, or at least facilitate settlement of cases which can be settled prior to trial. It also means that any such settlement negotiations take place in an atmosphere where each side knows or ought to know what the other’s experts are going to say if they are called to give their evidence. That is, of course, provided that those negotiations take place after Notice of Trial has been served, since it is only in that event that the disclosure rules apply, unless there has been voluntary earlier disclosure.

In those circumstances, the shroud of secrecy is lifted somewhat, so that it is no longer possible for a party to hold its cards close to its chest so to speak in order to possibly gain a better settlement for a party than the real merits of his/her case might justify. It seems to me that the plaintiffs’ submissions are predicated on the idea that if the defendant is kept unaware of the weaknesses of the plaintiffs’ case it may be possible to obtain for the plaintiff an amount of damages which exceeds the true value of the case, were the plaintiffs’ case, warts and all, to be disclosed to the other side.

In our adversarial system of litigation, it is right and even natural that advisers to a plaintiff should want to achieve as high an award as possible for their client. In the past when disclosure was not the order of the day, this was easier to achieve when a plaintiff and a defendant could play their game of poker right up to the steps of the courtroom in the hope that the other party would blink first. Those days are over now since the introduction of .I. 391/1998, at least in actions coming within the category of action set forth in Section 1(1) of the Courts Act, 1988.

When the court as in this case is examining the situation that has arisen and is considering whether a tender offer which has been made, should be allowed to remain in being or whether it should be struck out on the basis that it ought not to have been put in after unsuccessful without prejudice negotiations, the court cannot look at the situation in the same way as the plaintiff, who naturally feels that he has made some concessions during those negotiations which he would not have made had he known the defendant was going to make the tender offer. The court must consider the matter from the point of view of justice, and from the point of view of the purpose of the lodgment and tender mechanism, including the public interest identified by O’Dalaigh CJ in Ely v. Dargan (supra).

Can it seriously be suggested that from the court’s perspective as opposed to the plaintiffs’ that it is wrong or unjust or unfair that a defendant should be permitted to make, within the time permitted by the Rules, a lodgment or tender offer in the light of the true facts of the case, including the weakness in his opponent’s case? I think not. The purpose of the lodgment procedure is to facilitate an earlier settlement of a case, as well as reducing the costs of the action, and helping to ensure that as far as possible cases do not get heard by a court which need not be heard.

In the present case, even if some advantage had been gained during negotiations by way of concession, I can hardly imagine that those concessions were made too easily or against the factual reality of the plaintiffs’ case as known by the plaintiffs’ own advisers. While there may be some tactical advantage lost to the plaintiffs, the court must take a wider view and see whether any injustice can flow from the revelation of perhaps the real quality of the plaintiffs’ case.

I am not concerned with whether from a tactical point of view it was correct for the plaintiffs to enter negotiations in the way they did. From the court’s perspective it is desirable that all efforts to resolve disputes without incurring the high cost of a court hearing should be explored before the trial, but there is little purpose in those discussions if they take place in the atmosphere of a poker room, with one or perhaps each side negotiating on an unreal or exaggerated set of facts. In the case at hand, negotiations took place. They were said to be without prejudice negotiations. Presumably that means that if the case went to court nobody would be tied to anything that was said at the negotiations. But there is nothing in the Rules which says that a lodgment cannot be made after such negotiations, subject if necessary to an application for leave being made. In the present case the defendants believed that they did not require leave since they were doing so within four months of the date of service of the Notice of Trial, since in their view this is an action to which Order 22, rule 1(7) applies.

Equally the plaintiffs could have postponed taking part in any negotiations until such time as the defendants could not, without leave of the Court, make a tender offer.

In my view this is an action to which Section 1(1) of the Courts Act, 1988 applies, and therefore one to which Order 22, rule 1(7) applies, and therefore the tender offer has been made in accordance with the Rules of the Superior Courts. The Rules permit to be done what was done. The cases to which I was referred by Mr Connolly on behalf of the plaintiffs were decided on applications for leave to make a lodgment in circumstances where the time permitted by the Rules for so doing had expired. Different considerations would apply in such cases than in a case such as the present one where the court is being asked to strike out a tender offer which has been properly made, and on the basis that it ought not to be permitted since it was done after without prejudice negotiations. But as I have said I believe that the Brennan v. Iarnrod Eireann, and Meehan v. Keane cases to which I have referred were decided before the climate change brought about by the disclosure rules in S.I. 391/1998 in any event, and can be distinguished.

I therefore refuse the application sought. But I grant liberty to apply in the event that the Notice of Trial in this case had lapsed by the action not being set down for hearing. There may be an argument to be advanced to the effect that the defendants under the Rules ought to have applied for leave to make the lodgment in those circumstances, and that they could not do so as of right. Nothing I have said in this judgment should be taken as dealing with that discreet issue should it arise.

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