High Court of Ireland Decisions

1. This is an application on behalf of the third named Defendant for an Order dismissing the Plaintiff's action against this Defendant for want of prosecution pursuant to Order 27 Rule 1 of the Rules of the Superior Courts and further for an Order in the alternative that the Plaintiff's action against this Defendant be dismissed pursuant to Order 19 Rule 28 of the said Rules on the grounds that the proceedings do not in any event disclose any reasonable cause of action against this Defendant.

2. With regard to the first ground, I agree with the submission of Miss Dunne S.C. on behalf of the Plaintiff that I should not dismiss the Plaintiff's action on this basis because this action is now in the hands of Solicitor and Counsel in compliance with the Order of Mr. Justice Johnson.

3. With regard to the alternative claim, namely, that the Plaintiff's action should be dismissed as disclosing no reasonable cause of action, I accept the following propositions of law as submitted by Miss Dunne S.C. who refers me in particular to the judgment of Kelly J. in Bernadette Ennis -v- Colm Butterly ( 1996:1:IR:426 and in particular page 431 ) namely, that in dealing with this application I must assume

4. This means that I must accept fully all averments pleaded and all assertions deposed to on the Plaintiff's behalf even where these are traversed in opposing pleadings or are contested on Affidavit.

5. I must, in other words, deal with this application solely upon the basis of the case, including evidence and pleadings, submitted on behalf of the Plaintiff. In relation to the standard of proof, furthermore, I accept, as submitted by Miss Dunne S.C., that the threshold at this stage is low from the point of view of the Plaintiff.

6. Even accepting all of this, as I must and do, however, Counsel for the third Defendant, Mr. Gleeson, says that any alleged negligence and/or breach of duty on the part of this Defendant could not conceivably have caused the loss and harm of which the Plaintiff complains in these proceedings.

7. This arises because, it is submitted, the Plaintiff was free to cross-examine the third Defendant, in relation to any alleged inaccuracies, shortcomings or errors in her report in the course of the earlier proceedings before Blayney J., so that any harm or loss which is now complained of by the Plaintiff in these proceedings did not directly flow from any such limitations in the report (or evidence) of the third named Defendant, but rather from the judgment of the learned trial Judge.

8. It goes without saying that the third named Defendant in these proceedings cannot in any way be held liable for the conduct of the proceedings before Blayney J., including the granting of, refusal of, or length of adjournments therein.

9. The relief claimed in these proceedings by the Plaintiff against the third Defendant is damages, interest, and costs.

10. In my view the submission made on behalf of the third Defendant is well founded: it follows that a finding of negligence or breach of duty on the part of the third Defendant based on the facts and pleadings relied on by the Plaintiff in these proceedings could not possibly result in an award of compensatory damages against the third Defendant. It would, at best, be a case of injuria sine damno.

11. I also wish to make clear that I am making no such findings on this application against the third named Defendant.

12. In these circumstances I consider that I should accede in principle to the application made on behalf of the third named Defendant and should make an Order striking out such parts of the Statement of Claim as assert a cause of action against this Defendant.

13. It seems to me that the paragraphs which should be struck out are paragraphs 12, 13, 14 and 15 (together with the particulars of negligence set out in paragraph 15) but I would ask Counsel to consider this and if not in agreement to revert to me.

14. I should also clarify that I am making the above Order on the basis of the inherent jurisdiction of the Court rather than specifically in reliance on the provisions of Order 19 Rule 28 and for the following reason:

15. Where a Court makes a finding in favour of a Plaintiff on the basis of injuria sine damno (which, as I say, is the very best the Plaintiff could do in the present case in my view) the Court would normally make an award of nominal damages.

16. Nominal damages means a sum of money that may be spoken of but has no existence in point of quantity, the purposes of such damages being twofold, namely, either to assert a right or as a "peg" on which to hang an Order for costs.

17. The Plaintiff in the present case seeks compensatory damages (together with interest) and as I say she could not possibly succeed in obtaining an award under this head. It would be quite wrong and unjust to the third Defendant, in my view, if the Plaintiff's case against her were permitted to proceed merely to enable the Plaintiff to generate an entitlement to an Order for costs of the action against the third Defendant. That being the case, I consider that the Order which I now make should be made in the exercise of my inherent jurisdiction as it entails the exercise of an element of discretion on my part.