High Court of Ireland Decisions

You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Doe v. Armour Pharmaceutical Inc. [1997] IEHC 139 (31st July, 1997)
URL: http://www.bailii.org/ie/cases/IEHC/1997/139.html
Cite as: [1997] IEHC 139

[New search] [Printable RTF version] [Help]

Doe v. Armour Pharmaceutical Inc. [1997] IEHC 139 (31st July, 1997)

THE HIGH COURT

1993 No. 1462p

BETWEEN

GERRARD B. DOE AND MARTIN B. DOE

PLAINTIFFS

AND

ARMOUR PHARMACEUTICAL INC. AND BAXTER

HEALTH CARE CORPORATION AND MYLES LABORATORIES

INC. AND IMMUNO LIMITED AND OSTERREICHISCHES

INSTITUT FUR HAEMODERIVATIVE GSC mbH

DEFENDANTS

Judgment of Mr. Justice Morris delivered the 31st day of July, 1997 .

1. This Motion is one of twenty-three Motions before the Court. It has been agreed between the parties that this Motion will be treated as a test case ruling the other 22 cases since the same relief is sought in each of the other Motions. It seeks an Order dismissing the Plaintiffs' claim against the Third named Defendant, both pursuant to Order 19 Rule 28 of the Rules of the Superior Courts and under the inherent jurisdiction of the Court to make such an Order identified in Barry -v- Buckley , 1981 I.R. 306.

2. The Plaintiffs in these twenty-three applications are among a group of thirty-two Plaintiffs, each of whom instituted proceedings in the jurisdiction of the United States of America claiming damages against the first three Defendants on the basis that they were haemophiliacs who had received treatment by the use of blood products prepared by the First, Second and Third named Defendants who are pharmaceutical companies in the United States of America and as a result of the negligence of the Defendants suffered personal injuries. The proceedings were stayed in the United States of America because it was deemed proper that the actions should proceed in this jurisdiction and accordingly proceedings were instituted in the jurisdiction of the Irish Courts. In these proceedings the same three Defendants were retained as Defendants but subsequently, an application was made to the join the Fourth and Fifth named Defendants and this application was successful. These Defendants were joined on the basis that it could be established that the Plaintiff had been treated with the blood product manufactured by them.

3. The present Motion is brought by the Third named Defendant and in support of this application, it makes the following points:-

(a) It points to the fact that these are but approximately 50% of the cases which are now pending before the Courts in which they are named as Defendants. It says that in these twenty-three cases, the Plaintiffs have no evidence whatever to establish that they were treated with product for which the Third named Defendant is responsible. The Third named Defendant has by way of Notice of Particulars and otherwise, challenged the Plaintiffs to offer any evidence to the Court that they were so treated. It says that the Plaintiffs have offered no such evidence and it says in the circumstances it should be dismissed out of the case on the grounds that, in the words of Order 19 Rule 28, the action "discloses no reasonable cause of action" against it. It says that it is fortuitous that it appears in the action as a Defendant and this arises only because it was an American company which was sued in the first instance in America simply because it had imported its product into the Republic of Ireland.

(b) Not only do the Third named Defendant say that the Plaintiffs are unable to offer any evidence of their product having been administered to any one of the twenty-three Plaintiffs but it has embarked upon an elaborate examination of the dates upon which its product was available in this jurisdiction, the unit count of its product, the unit count administered to each Plaintiff, the dates of such administration and it submits to the Court that as a result of these enquiries, it can be demonstrated that it was an impossibility that any of its product was ever administered to the Plaintiff. In this regard it acknowledges that in a variety of other cases (not now before the Court) it does accept that it is a possibility that its product was administered to these Plaintiffs but in the instant case it says that this is not possible.

(c) Counsel for the Third named Defendant has confronted head-on all the criticisms which have been levelled at the Third named Defendant's conclusions that its product was not administered to the Plaintiffs and he has answered in a convincing and matter-of-fact way, all of the criticisms so as to enforce the suggestion that the Third named Defendant's Statements are correct and they say that in these circumstances it is improper that the action should be allowed to proceed against them exposing them to the inconvenience and costs of fighting these cases.

(d) Counsel for the Third named Defendant has indicated to the Court that it would be happy to accept an Order from the Court dismissing the case against these Defendants but reserving the right to any party to the action to re-join the Third named Defendant as a Defendant if at any stage in the future during the course of the action it should transpire that there is any evidence to associate it with any of these Plaintiffs.

4. On behalf of the Plaintiffs, Mr. Cush has submitted that all the information upon which the Third named Defendant bases its application and all the data upon which its calculations are founded has its origin with the Third named Defendant's servants or agents. This data is not corroborated by a sworn testimony. It is not revealed who compiled the data and information and has in fact sought to throw doubt upon the accuracy of this information. He has moreover made the following point. He says that at the moment he is prepared to accept that he does not have any documentary proof to offer to the Court that any of these Plaintiffs were in fact treated by the Third named Defendant's product, however, he does not accept that this is the sole method by which the liability of the Third named Defendant can be established. He suggests that it remains open to the Plaintiff to tender oral evidence to the Court upon which the Court may legitimately be asked to draw conclusions, namely, that the Plaintiff was treated with the Third named Defendant's product as a matter of probability. Accordingly, he submits that it should remain open to the Plaintiffs to have the opportunity of tendering such evidence at the hearing.

5. This application is attended by further considerations. Notices of Contribution and Indemnity under the Civil Liability Act, 1964 have been served on the Third named Defendant by the First and Second named Defendants. Accordingly, the case is made by Counsel on their behalf that if the Court were to strike out the case, insofar as the Third named Defendant is concerned, that they, the first and second named Defendants, would be deprived of their respective rights to claim this contribution or indemnity. They accordingly say that irrespective of the capacity of the Plaintiffs to prove their case against the Third named Defendant, it should remain open to them at the hearing to tender evidence to show that the Third named Defendant did provide its product to the Plaintiffs and accordingly the Order should not be made.

6. There is a further element to the case and that is that by Order of the 23rd May, 1996, the Fourth and Fifth named Defendants were joined as Defendants. To date no steps have been taken by the Plaintiffs against them other than the delivery of pleadings and accordingly Counsel on behalf of the Fourth and Fifth named Defendants urged the Court to refuse the Order sought on the grounds that they have had little or no opportunity to consider their position and if an Order were made now dismissing the Third named Defendant from the action, it would be necessary for them to apply to have them joined as a Third Party in order to pursue their remedy for contribution or indemnity against it.

7. By way of a preliminary point, the attention of the Court has been directed to Hetherington -v- Ultra Tyre Services Limited , 1993 I.L.R.M. 353 in which it was held by the Supreme Court that:-

"If two defendants are sued and if one of them seeks an application for a non-suit at the conclusion of the plaintiff's case, it is open to the Judge and probably very desirable in the interest of justice, that he should enquire from the second or other defendants involved in the case as to whether it would be their intention, if they are left in the action, to present a case against the parties seeking a non-suit at that time. If they are going to present a case by evidence or submission against their co-defendant, seeking to blame him, all the requirements of justice are that all that evidence should be heard before final determination of the case."

8. In the circumstances, they say that this application is premature as it is intended to offer such evidence in this case.

9. I take as the starting point in considering this application, the decision of Costello J., as he then was, in Barry -v- Buckley , 1981 I.R. 306, in which the Court identified its inherent jurisdiction to strike out an action if the conclusion is reached that a considerable injustice would result if that step is not taken. However, he held that this is a jurisdiction which "should be exercised with great caution" and Murphy J. in Den -v- Banco Ambrosiano PSA was of the same view 1991 1 I.R. 569 and this view was approved by the Supreme Court.

10. In these cases and in Sun Fat Chan -v- Osseous Limited , 1982 1 I.R. 425, it was made clear that the Court would only exercise this jurisdiction in which it was clear beyond doubt that the Plaintiff could not succeed. Such circumstances would clearly envisage that no dispute could arise on issues of fact. If such a dispute exists then it is clear, in my view, that such an issue can only be determined by the trial Judge at the hearing of the action.

11. I respectfully agree with the views expressed by Mr. Justice McCarthy in Sun Fat Chan -v- Osseous Limited when he said

"Experience has shown that the trial of an action will identify a variety of circumstances, perhaps not entirely contemplated at earlier stages in the proceedings; often times it may appear that the facts are clear and established that the trial itself will disclose a different picture. With that qualification, however, I recognise the enforcement of a jurisdiction of this kind as a healthy development in our juris prudence and not one to be disowned for its novelty though there may be a certain sense of disquiet at its rigour. The procedure is peculiarly appropriate to actions for the enforcements of contract, since it likely that the subject matter of the contract, would, but for the existence of the action, be the focus of another contract"

12. In the present case neither the Plaintiff nor the remaining Defendants accept as matters of fact the facts relied upon by the Third named Defendant in reaching its conclusion that none of these Plaintiffs was treated with its product. No doubt at the hearing the Third nNamed Defendant will embark upon establishing these facts. However, until such time as these facts are established, in my view it is not open to the Court to make the Order now sought.

13. It does appear me that if I were decide this Motion with a view to avoiding unnecessary expense and on the basis of what is best for all the parties I would grant the relief sought. It seems to me probable that at the end of the day the Plaintiffs will be unable to establish that they were ever treated with the Third named Defendants' product and it also seems to me that the other Defendants will fail to obtain contribution or indemnity from the Third named Defendants. In these circumstances I am unable to identify any reason why the Plaintiff and the other Defendants should not agree to the Order now proposed - namely that the proceedings be now discontinued reserving the right to any party to reactivate the proceedings against the Third named Defendant if its involvement is established - however, it is no part of the Court's function to make such arrangements, save by consent of the parties. All the parties have resisted the making of this Order and accordingly I am of the view that it is not open to the Court in the light of the disputed facts to make the Order sought.

14. Accordingly, I refuse the relief sought.