High Court of Ireland Decisions

 
THE HIGH COURT

[2004] IEHC 316

[1998 No. 6279 P]

BETWEEN

MARY MANNING

PLAINTIFF

-and- BENSON AND HEDGES LIMITED

DEFENDANT

[2000 No. 8512P]

BETWEEN

SARAH GARLAND

PLAINTIFF

-and- JOHN PLAYER & SONS LIMITED

DEFENDANT

[1998 No. 11732P]

BETWEEN

MARY McNEVIN

PLAINTIFF

-and- P J CARROLL & COMPANY LIMITED

DEFENDANT

JUDGMENT OF Ms. Justice Finlay Geoghegan delivered on the 30^th day of July, 2004.

PRELIMINARY

This judgment is given in relation to three applications brought by the defendants in each of the above proceedings against the plaintiff named. The applications were heard simultaneously. Each of defendants was separately represented. The plaintiffs were jointly represented. In certain of the proceedings there are additional plaintiffs and these judgments only apply to the applications against the plaintiffs named.

Plaintiffs' claims

The primary claim of each plaintiff is a claim for damages for injury allegedly suffered by reason of alleged negligence and breach of duty of the relevant defendant. In two cases the injury alleged is emphysema and in one lung cancer. Each of the claims are similarly pleaded. Each essentially alleges that by reason of alleged wrongful acts of the relevant defendant the plaintiff commenced smoking; became addicted; continued to smoke and by reason of smoking has contracted the relevant disease or illness. Ms. Manning is alleged to have commenced smoking in 1948 and to have been diagnosed with emphysema in 1995. Ms. Garland is stated to have commenced smoking in 1942 or 1945 and to have been diagnosed with emphysema in August 1997. Ms. McNevin is alleged to have commenced smoking in 1968 and to have been diagnosed with lung cancer in November 1995.

Assumption for these applications

Defences have not been delivered in any of the claims. The Statute of Limitations has not been raised against the plaintiffs. These applications must be considered upon the basis that the claims as made are not statute barred. In each case the plenary summons was issued within three years of the date of diagnosis as pleaded. It is appropriate that the court should consider each application in the most favourable way to the plaintiff. Accordingly, it is assumed for the purposes of this application that each of the claims made is not statute barred. This appears to require an assumption that the date of diagnosis in respect of each of the plaintiffs is either the date of completion of the tort or torts alleged or the date of knowledge within the meaning of the Statute of Limitations (Amendment) Act, 1991. For reasons which should be apparent later in this judgment the former is probably the more favourable position to the plaintiffs and therefore I have assumed for the purposes of these applications that the tort or torts alleged only became complete and the plaintiffs' respective causes of action against the defendants accrued on the date of diagnosis pleaded. In making this assumption I am not making any finding to that effect.

Defendants' applications

Each defendant seeks an order pursuant to the inherent jurisdiction of the court that the plaintiff's claim be dismissed. Whilst the three notices of motion grounding these applications set out in varying terms the grounds upon which the application is brought the grounds pursued by all the defendants may be summarised as follows:-

(1) That the plaintiffs' claims be dismissed for want of prosecution on the grounds of inordinate and inexcusable delay on the part of the plaintiffs in the commencement and prosecution of the proceedings which delay has prejudiced the defendants such that the balance of justice requires that the claims be dismissed.

(2) That the plaintiffs' claims be dismissed in the interests of justice in defence of the defendants' rights under the Constitution including the right to fair procedures and a fair trial.

(3) That the plaintiffs' claims be dismissed as it would be contrary to the defendants' rights to a trial within a reasonable time under Article 6 of the European Convention for the Protection of Fundamental Freedoms and Human Rights ("ECHR") to require the defendants to defend themselves against the plaintiffs' claims.

Insofar as is necessary I propose considering the applicable law in relation to each of the above grounds.

Applicable Law

Want of Prosecution

The law applicable to the claim to dismiss on grounds of want of prosecution is as stated by the Supreme Court in Primor Plc. v. Stokes Kennedy Crowley and Ors. [1996] 2 I.R. 459. As there was some dispute in submissions between the parties as to precisely what was determined by that case and its application to the facts of the present applications it is necessary to set out the principles as determined by the Supreme Court in that case. The judgment of the majority was given by Hamilton C.J. and in his judgment at p. 475 set out the following applicable principles:-

(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

(d) in considering this latter obligation the court is entitled to take into consideration and have regard to:-

(i) the implied constitutional principles of basic fairness of procedures,

(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,

(iii) any delay on the part of the defendant – because litigation is a two party operation, the conduct of both parties should be looked at,

(iv) whether any delay or conduct of the defendant amounts to acquiescence on part the defendant in the plaintiff's delay,

(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,

(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,

(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.

In relation to the application of the above principles to the defendants' applications for an order dismissing the plaintiffs' claims for want of prosecution there appear to be only two issues in dispute between the parties:-

(1) Should the court consider any delay by the plaintiff in the period between the date of the alleged wrongful acts or accrual of the cause of action and date of commencement of the proceedings; and

(2) In considering the balance of justice issues what period of delay is relevant to the issue of prejudice to the defendant or risk that it is not possible to have a fair trial.

On the first issue counsel for the plaintiffs submitted that the court should only look at delay after the commencement of the proceedings. It was accepted that where there has been a delay subsequent to the accrual of the cause of action but before commencement of proceedings that in accordance with the decision in Primor Plc. v. Stokes Kennedy Crowley the court will look more critically at any delay after issue of the proceedings. However, it was submitted that in considering an application to dismiss for "want of prosecution" it was only any delay in the prosecution of the proceedings i.e. after issue that should be considered.

In Primor Plc. v. Stokes Kennedy Crowley, Hamilton C.J. (in relation to the appeal by Freaneys) considered the period between the accrual of the cause of action and the issue of the plenary the summons and concluded at p. 489:

"I am not satisfied that there was inordinate delay by plaintiffs in the issue of the plenary summons on the 21^st December, 1984, but having regard to the fact that the alleged acts of negligence on the part of Freaneys relate back to acts alleged to have occurred in 1978, nearly six years earlier, there was a duty on the part of the plaintiff to proceed with reasonable expedition.

In the circumstances, the delay in the service of the plenary summons and statement of claim was inordinate and inexcusable and I would dismiss the plaintiff's appeal on this ground."

The case O'Domhnaill v. Merrick [1984] I.R. 151 was also an application to strike out for want of prosecution. The plaintiff's claim was for personal injuries. The plaintiff at the date of the accrual of the cause of action had been an infant. The plenary summons was issued 16 years after the accident but within the limitation period following the decision in O'Brien v. Keogh [1972] I.R. 144.

On the facts of that case, Henchy J. (who delivered the majority judgment of the Supreme Court in relation to the question of delay) concluded at p. 156:

"The recital I have given in the course taken by the plaintiff's claim for damages, from the happening of the accident in 1961 up to the hearing of this appeal in May, 1984, gives a picture of considerable delay on the plaintiff's side of the case. Making all due allowances, I find that delay inordinate and inexcusable."

In each of the above cases, the Court considered the period between the accrual of cause of action and issue of the plenary summons.

Accordingly, it appears to me that the Supreme Court has determined that in considering an application to dismiss for want of prosecution, the court should, in general, consider the period starting with the accrual of the cause of action for the purpose of determining whether there has been a delay by the plaintiff. I say "in general" as neither of the above cases concerned a personal injuries claim with a "date of knowledge" within the meaning of s. 3 of the Statute of Limitations (Amendment) Act, 2000 which was later than the date of accrual of the cause of action. In such a case it may be that court should only consider the period from the date of knowledge.

The second issue relates to the period during which the court should consider whether or not prejudice has been caused to the defendants or during which they have been put at risk of an unfair trial. Counsel on behalf of the plaintiffs submitted that the court should only consider the period of delay found to be inordinate and inexcusable. It is of particular relevance to the facts of these cases by reason of the lapse of time between the dates of the first alleged wrongful acts and the dates of diagnosis being the assumed dates of accrual of the causes of action for the purposes of these applications.

Counsel for the defendants submit that when the court comes to consider the balance of justice even following a finding of inordinate and inexcusable delay that the court must consider the entire period between the dates of the alleged wrongful acts and the probable date of trial and consider whether, by reason of such periods, prejudice has been caused to the defendants for a substantial risk that it is not possible to have a fair trial.

I cannot accept this submission where the application to dismiss is grounded upon an alleged want of prosecution.

In considering the decisions of the Supreme Court in Primor Plc. v. Stokes Kennedy Crowley and the other decisions referred to therein, I am satisfied that the submission of counsel for the plaintiffs is well founded. Where the application to dismiss is based upon a want of prosecution on grounds of inordinate and inexcusable delay it appears that it inexorably follows that the court must consider whether the delay so found by it has caused serious prejudice to the defendant or gives rise to a substantial risk that it is not possible to have a fair trial. This is the approach taken by Hamilton C.J. in Primor Plc v Stokes Kennedy Crowley at par. (d)(vi) of the principles cited above. It was also the approach applied by Hamilton C.J. to the facts of those appeals. In relation to the Stokes Kennedy Crowley appeal he concluded at p. 494:

"I am satisfied, from a consideration of all the authorities, that the prejudice caused to a defendant by inordinate and inexcusable delay on

the part of the plaintiff is a fundamental ingredient which may and should be taken into account on an application to dismiss proceedings for want of prosecution and that if the prejudice is such that a fair trial between the parties cannot now be held, then the proceedings should be dismissed and the defendant should not be further prejudiced by the delay that would inevitably be caused by a long and difficult hearing of the action and the possibility of an appeal from the decision of the High Court therein."

In none of the cases, dealing with applications to dismiss for want of prosecution, was there a significant lapse of time between the alleged wrongful acts and the alleged accrual of the cause of action. I accept that the courts have not specifically addressed the issue in the factual context in which I am now asked to do so. However it appears to me that it is consistent with the above principles and also logical that where the application to dismiss is for "want of prosecution" that the court cannot in considering the prejudice caused by delay take into account any period prior to the accrual of the cause of action. Until the cause of action accrues the plaintiff, normally, cannot commence proceedings. Hence even if as I have concluded the obligation to prosecute includes the obligation to commence proceedings there cannot be any question of delay until the entitlement to commence i.e. the accrual of cause of action occurs.

Another way of looking at the issue is to consider what would have been the position if subsequent to the date of diagnosis of each of the plaintiffs they had proceeded with alacrity to commence proceedings and prosecuted the proceedings within the time limits in the Rules. If that had been done the defendants could not have applied for an order to dismiss for want of prosecution notwithstanding the long lapse of time between the first occurrence of the alleged wrongful acts and the date of accrual of the cause of action.

It follows from this conclusion that in considering the application to dismiss for want of prosecution the court should not consider prejudice caused to the defendants or the risk that it is not possible to have a fair trial by reason of lapse of time between the alleged wrongful acts and accrual of cause of action. The fact that there was such a lapse of time may however be relevant when considering the relevant factors to the balance of justice issues. The Courts should not ignore the fact that the alleged wrongful acts took place a long time ago. At minimum where there is a long lapse of time between wrongful acts and accrual of a cause of action it may mean that the claim is already difficult for the defendant to deal with and prejudice caused by subsequent delay may have to be more critically examined. Also, such a long lapse of time places an special onus on a plaintiff to proceed with due expedition after the accrual of the cause of action.

Dismiss in the interests of Justice

The second and separate ground upon which the defendants seek an order dismissing each of the plaintiff's claims at this stage is that it would be in breach of the defendant's rights under the Constitution, including the right to a fair trial and to fair procedures to permit the claims to proceed.

Counsel for the defendants submit that it is now well recognised that the Courts have an inherent jurisdiction to dismiss a claim where by reason of a lapse of time between the alleged wrongful acts and the probable date of trial either a fair trial cannot be conducted by the court or it would be in breach of a defendant's rights to fair procedures to require him to defend the claim.

In considering this submission I use the phrase "lapse of time" to indicate a period during which the court either assumes or holds that there has been no delay, in the sense of culpable delay, by or on behalf of the plaintiff. Insofar as I use the word "delay" I do so to describe a period during which the plaintiff could have taken steps to commence or prosecute proceedings (i.e. a period after the accrual of the cause of action) but did not do so.

Counsel for the defendants submit that the inherent jurisdiction contended for derives principally from Article 34 of the Constitution. Article 34.1 provides:

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution …"

Reliance is also placed on the nature of the administration of justice which it was submitted may be derived from Article 34.3.1 of the Constitution which provides for a High Court which is to be "invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal". The constitutional guarantee of fair procedures derived from Article 40.3 was also relied upon.

I accept that the courts have recognised the existence of a jurisdiction to dismiss a claim by reason of a lapse of time without there being any delay in the sense of culpable delay by a plaintiff and where the requirements of what are variously described as "the interest of justice" or the prevention of "patent unfairness" or the requirements of "Constitutional principles of fairness of procedure" or the risk of putting "justice to the hazard" so require.

Toal v Duignan & Others (No. 1) [1991] ILRM 135 was a case where the Supreme Court exercised such a jurisdiction. The plaintiff's claim (in part) was for damages for an injury allegedly suffered at birth. Approximately 25 years had passed since that time. The plaintiff was considered to be blameless for the period which had elapsed. Finlay C.J. (with Henchy J. and Hederman J.) delivering the unanimous judgment of the Court on several defendants' applications to dismiss stated at p. 139:

"In the High Court it was held by Keane J. that the case was governed by the decision of this Court in O'Domhnaill v Merrick [1984] IR 151. I am in agreement with that view of the law. It is unnecessary for me to repeat here the principles laid down by this Court in that case, but they may be summarised in their application to the present appeal as being that where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the acts complained of and the trial, then if that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action".

O'Domhnaill v Merrick [1984] IR 151 was however, a claim to dismiss for want of prosecution. The plaintiff in that case was found to have been in delay and the delay to be inordinate and inexcusable. It was in considering whether there were countervailing circumstances which would justify a disregard of the delay that Henchy J. referred to the principles which appear to have been subsequently relied upon in Toal v. Duignan & Others (No. 1) as set out above. In O'Domhnaill v. Merrick Henchy J. at pp. 157-158 stated:

"After due regard to all relevant factors, I am driven to the conclusion that not only was the delay in this case inordinate and inexcusable but there are no countervailing circumstances which would justify a disregard of that delay. I consider that it would be contrary to natural justice and an abuse of the process of the Courts if the defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial, and a claim for damages of which she first learned 16 years after the accident. . . .

While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basis fairness to allow the case to proceed to trial."

In O'Domhnaill v Merrick, McCarthy J. delivered a dissenting judgment. In Toal v. Duignan a subsequent application was made by a number of other defendants. The appeal in that matter came on before a differently composed Supreme Court to that which decided Toal v. Duignan (No. 1). The latter Court comprised Finlay C.J., Griffin J. and McCarthy J. In that appeal Toal v. Duignan (No. 2) [1991] ILRM 140 Finlay C.J. and Griffin J. upheld the inherent jurisdiction relied upon in the previous appeal. Finlay C.J. at p. 142 stated:

"In the course of the argument on these appeals a question was raised as to whether the court had jurisdiction to dismiss by reason of delay an action which was in fact commenced within a time limit fixed by Act of the Oireachtas.

My judgment in the previous appeal in respect of the other defendants in this case was based on an acceptance of the principles laid down in the judgment of Henchy J. in O'Domhnaill v. Merrick [1984] IR 151, with which Griffin J. agreed.

I have carefully reconsidered the principles laid down in that judgment on the question as to the jurisdiction of this Court in the interests of justice to dismiss a claim where the length of time which has elapsed between the events out of which it arises and the time when it comes for hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself or herself against the claim made. I have also reconsidered the dissent from the view expressed by McCarthy J. in the judgment delivered by him in O'Domhnaill v. Merrick.

I adhere to the view expressed by me in the previous appeal in this case that the court has got such an inherent jurisdiction. It seems to me that to conclude otherwise is to give to the Oireachtas a supremacy over the courts which is inconsistent with the Constitution."

Whilst Finlay C.J. refers to dismiss "by reason of delay" it is clear on the facts of the case that delay is being used in a way which did not connote any culpability on the part of the plaintiff and in the sense I am using "lapse of time".

Griffin J. in Toal V. Duignan & Others (No. 2) [1991] ILRM 140 at p. 149 expressed himself to be in complete agreement with the conclusion of the Chief Justice as set out above and his reasons. McCarthy J. dissented. He stated that he recognised, notwithstanding his dissent in O'Domhnaill's case, (and subject to any future review by a full Court) that the weight of judicial opinion was in favour of the jurisdiction of the Court to dismiss an action brought and maintained within the statutory limitation period but then expressed the view that without the culpable delay that existed in O'Domhnaill's case such jurisdiction may not be exercised so as to dismiss the claim of a non-culpable plaintiff.

From the above analysis of the two decisions in Toal v. Duignan, I have concluded that the Supreme Court has determined that such an inherent jurisdiction exists even in the absence of culpable delay and I am bound by such decisions.

Hardiman J. in J.O'C. v. Director of Public Prosecutions [2000] 3 IR 478 in considering the effect of lapse of time on the fairness of trials referred to the above cases and a number of other decisions and then stated at pp. 499-500:

"Examples of the application of these principles in civil cases can be multiplied. Enough, however, has been said to indicate that it has consistently been held:-

(a) that a lengthy lapse of time between an event giving rise to litigation, and a trial creates a risk of injustice: "the chances of the courts being able to find out what really happened are progressively reduced as time goes on";

(b) that the lapse of time may be so great as to deprive the party against whom an allegation is made of his "capacity . . . to be effectively heard";

(c) that such lapse of time may be so great as it would be "contrary to natural justice and an abuse of the process of the court if the defendant had to face a trial which (he or) she would have to try to defeat an allegation of negligence on her part in an accident that would taken place 24 years before the trial . . .;

(d) that, having regard to the above matters the court may dismiss a claim against a defendant by reason of the delay in bringing it "whether culpable or not", because a long lapse of time will "necessarily" create "inequity or injustice", amount to "an absolute and obvious injustice" or even "a parody of justice";

(e) that the foregoing principles apply with particular force in a case where "disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past . . .", as opposed presumably cases where there are legal issues only, or at least a high level of documentation or physical evidence, qualifying the need to rely on oral testimony."

J.O'C v. D.P.P. was an application for an order of prohibition of a criminal trial. The judgment of Hardiman J. was a dissenting judgment. Notwithstanding, the above whilst not necessarily binding on me, is a helpful summary of the earlier cases and assists in identifying principles which should apply when exercising the inherent jurisdiction for which the defendants contend.

The decision of Kelly J. in Kelly v. O'Leary [2001] 2 IR 526 is also of assistance in attempting to analyse the principles according to which the court should exercise such inherent jurisdiction. That was an application to dismiss for want of prosecution. There was a very long delay between the accrual of the cause of action and commencement of the proceedings which Kelly J. found to be inordinate and inexcusable. He referred to the possibility of there being two different tests in a claim to dismiss for want of prosecution and a claim to dismiss in the interests of justice by reason of significant lapse of time but left that question open. He determined the application by applying the principles in Primor plc. v. Stokes Kennedy Crowley [1996] 2 IR 459 in relation to dismiss for want of prosecution referred to above. However in considering the balance of justice question as proposed by the Supreme Court he ultimately reached his conclusion by answering the same two fundamental questions which appear to be raised by the judgments of the Supreme Court in Toal v. Duignan (No. 1), Toal v. Duignan (No. 2) and O'Domhnaill v. Merrick. These are:

1. Is there, by reason of the lapse of time (or delay) a real and serious risk of an unfair trial; and

2. Is there by reason of the lapse of time (or delay) a clear and patent unfairness in asking the defendant to defend the action.

The constitutional requirement that the courts administer justice requires that the courts be capable of conducting a fair trial. This, as was submitted, is required by Article 34 of the Constitution. Accordingly, if a defendant can on the facts establish that having regard to a lapse of time for which he is not to blame there is a real and serious risk of an unfair trial then he may be entitled to an order to dismiss.

Also, if a defendant can establish that a lapse of time for which he is not to blame is such that there is a clear and patent unfairness in asking him now to defend the claim then he may also be entitled to an order to dismiss. This entitlement derives principally from the constitutional guarantee to fair procedures in Article 40.3 of the Constitution.

Whilst in some of the cases the judgments have referred to matters under both these headings they appear to be potentially separate grounds upon which the inherent jurisdiction to dismiss may be exercised.

The factor to be considered by the court in relation to each question may overlap. It appears to me that these may include:-

1. Has the defendant contributed to the lapse of time.

2. The nature of the claims.

3. The probable issues to be determined by the court; in particular whether there will be factual issues to be determined or only legal issues.

4. The nature of the principal evidence; in particular whether there will be oral evidence.

5. The availability of relevant witnesses.

6. The length of lapse of time and in particular the length of time between the acts or omissions in relation to which the court will be asked to make factual determinations and probable trial date.

Further, on the second question it will be relevant to consider any actual prejudice to the defendant in attempting to defend the claim by reason of the lapse of time.

Breach of Article 6 of ECHR

It was agreed in the course of the hearing that I should only consider the defendants' applications based on Article 6 of the ECHR in the event that it became necessary. By reason of the conclusion I have reached on each of the above grounds I do not propose considering the applicable law to this ground.

Conclusions

I have considered and reached a conclusion on each of the defendants' applications under each of the first two grounds, want of prosecution and dismiss in the interest of justice. I have done this as the defendants differed in their approach as to the primary ground relied upon. Also, by reason of the extensive submissions made it appeared appropriate that I should do so to avoid the expense of a further application in the High Court in the event that I was considered to be wrong in my conclusion as to the applicable law or its application to the facts of these applications on either ground.

Want of prosecution

Delay

The relevant dates in each claim are as follows.

Ms. Manning:

Assumed accrual of cause of action May, 1995

Issue of plenary summons 25^th May, 1998

Service of plenary summons 28^th April, 1999

Entry of appearance 29^th April, 1999

Correspondence from Arthur Cox calling for statement of claims/threatening motion to dismiss: 26^th November, 2001, 10^th December, 2001, 25^th January, 2002, 18^th April, 2002, 26^th July, 2002 and 17^th October, 2002.

First motion to dismiss issued 21^st August, 2002

(return date 19^th November, 2002).

Delivery of statement of claim 18^th November, 2002.

First notice for particulars 23^rd January, 2003.

Order compelling plaintiff to furnish replies to particulars

28^th April, 2003

Plaintiffs replies to notice of particulars 16^th June, 2003

Second notice of particulars 2^nd September, 2003

Plaintiffs replies to second notice for particulars 11^th February, 2004

Issue of second motion to dismiss 3^rd March, 2004

Issue of plaintiff's motion for judgment in default of defence 11^th March, 2004

Ms. Garland

Assumed accrual of cause of action August, 1997

Issue of plenary summons 20^th July, 2000.

Service of plenary summons 12^th June, 2001.

Entry of appearance 14^th June, 2001.

Correspondence from McCann FitzGerald calling for statement of claim/threatening motion to dismiss 19^th November, 2001, 1^st February, 2002, 10^th April, 2002.

Delivery of statement of claim 22^nd November, 2002.

First notice for particulars 20^th December, 2002

Plaintiff's reply to particulars 19^th December, 2003.

Plaintiff's motion for judgment in default of default of defence issued 22^nd January, 2004 (Returnable 9^th February 2004)

Second notice for particulars 29^th January, 2004.

Plaintiffs replies to particulars 9^th February, 2004.

Motion to dismiss issued 27^th February, 2004.

Ms. McNevin

Assumed accrual of cause of action November, 1995

Issue of summons 29^th October, 1998

Service of summons 29^th September, 1999

Entry of appearance 6^th October, 1999

Correspondence seeking statement of claim/threatening motion to dismiss 10^th December, 2001, 11^th January, 2002, 21^st January, 2002, 13^th February, 2002.

First motion to dismiss 31^st May, 2002.

Order of Master extending time by three weeks 9^th July, 2002.

Second motion to dismiss issued 24^th September, 2002 (not served).

Delivery of statement of claim 25^th September, 2002.

First notice for particulars 3^rd December, 2002.

Replies to particulars 22^nd December, 2003.

Plaintiff's motion for judgment in default of defence issued 22^nd January, 2004.

Second notice for particulars 29^th January, 2004.

Replies to particulars 9^th February, 2004.

Third motion to dismiss issued 24^th February, 2004.

The relevant periods for the purpose of considering the allegation that there has been inordinate delay in respect of each of the plaintiffs are:

Ms. Manning

Period between accrual of cause of action and issue of summons – almost three years.

Period between issue and service of summons – eleven months.

Period between appearance and delivery of statement of claim – three years and seven months

Period between first notice for particulars and replies (alleged to be incomplete) – six months

Ms. Garland

Period between accrual of cause of action and issue of summons – two years eleven months.

Period between issue and service of summons – almost eleven months

Period between appearance and delivery of statement of claim – one year and five months

Period between first notice for particulars and replies (alleged to be incomplete) – one year.

Ms. McNevin

Period between accrual of cause of action and issue of summons – two years and eleven months.

Period between issue and service of summons – eleven months.

Period between appearance and delivery of statement of claim – two years and eleven months

Period between first notice for particulars and replies (alleged to be incomplete) – 19 days.

Considering the nature of the claims made by the plaintiffs and even assuming to their benefit that the claims are complex claims to prepare and plead the delays subsequent to the accrual of the cause of action both in the commencement and subsequent pursuit of the proceedings must be considered to be inordinate.

I am reinforced in the conclusion I have reached by the fact that Quirke J. in Eileen O'Connor v. John Player & Sons Limited and Ors. (The High Court, Unreported 12^th March, 2004) in relation to similar claims with similar periods reached the same conclusion.

Inexcusable

While counsel for the plaintiffs made no concession in relation to the delays being inexcusable, he did not seek to reopen all the issues under this heading determined by Quirke J. in his judgment in O'Connor v. John Player & Sons and Ors. relating to the arrangements for the collection of medical records. I have considered carefully Mr. Ward's affidavits, the correspondence referred to, the affidavits sworn by the solicitors for the defendants and the correspondence referred to therein. The furthest the matter can be put from the plaintiffs perspective is that there may have been a misunderstanding by the plaintiff's solicitors during some period as to whether they were obliged to deliver a statement of claim without the full medical records of the relevant plaintiff having been collected. The relative inactivity of the defendant's solicitors in seeking a statement of claim in Ms. Manning's and Ms. McNevin's cases during 2000 and first part of 2001 may have contributed to any such misunderstanding. However, even if such a misunderstanding did occur, such misunderstanding must have come to an end when the defendants' solicitors in each of these cases wrote the first letter calling for the delivery of a statement of claim in November/December, 2001. Even if I were to accept that the arrangements in relation to medical records offered an excuse for the period between the entry of appearance and the first letter calling on the plaintiff to deliver a statement of claim it does not appear that such acceptance could prevent the conclusion that the balance of the delays between the accruals of the causes of actions and the point in each proceeding reached by the date of issue of the current motions is both inordinate and inexcusable.

Given the nature of the claims and the fact that they include alleged wrongful acts stated to have happened many decades ago the plaintiffs were under a particular duty to proceed with due expedition following the accrual of the cause of action. Taking that into account and the difficult nature of the claims being brought it appears to me that it would have been reasonable for the plaintiffs to have reached the present stage in the proceedings i.e. replies to particulars raised on the statement of claim within a maximum period of two years (cause of action to issue and service one year; appearance and statement of claim six months; particulars and replies 6 months). Even assuming in Ms. Manning's and Ms. McNevin's cases further periods of two years and one and a half years respectively may be excusable the minimum periods of delay in each of the claims of the date of hearing of these applications to dismiss were approximately in Ms. Manning and Ms. McNevin claims five years and Ms. Garland claim four and a half years.

Whilst Mr. Ward has referred in his grounding affidavits to the streamlining process which took place counsel for the plaintiffs did not pursue this as an excuse before me.

Each of the defendants relied specifically and in my view with justification upon the absence of any explanation whatsoever for the delay in the issue of proceedings. No plaintiff has sworn an affidavit. There is absolutely no explanation as to why in each case no proceedings were not issued until almost three years after the date of diagnosis relied upon nor indeed why the summons was not served in each case for approximately eleven months.

Balance of justice

For the reasons set out above in this judgment in considering the issues to which this court is directed by the judgment of Hamilton C.J. in Primor Plc v. Stokes Kennedy Crowley under the heading of balance of justice in an application to dismiss for want of prosecution the court is confined to considering the impact of delay since the accrual of the causes of action.

On behalf of the defendants it was submitted that even if the court is confined to considering delay since the accrual of the cause of action that the court must consider such delay and the prejudice caused by such delay both in the context of the nature of the claims and the progress made to date in the proceedings. I accept that submission.

A consideration of the statements of claim and replies to the notices for particulars in each of the proceedings makes it clear that the claims being advanced by each of the plaintiffs are extremely wide ranging. The wrongful acts alleged go back to the start by each defendant of the sale/distribution/manufacturer of cigarettes in Ireland which appears to have been in the early twentieth century. They also expressly refer to acts prior to the commencement of smoking by each of the plaintiffs i.e. prior to 1948, 1942 (or 1945) and 1968 respectfully. The wrongful acts alleged are multiple. It was submitted, and again on the facts I accept the submission, that there is, in the proceedings to date a lack of specificity in relation to the claims being made by each plaintiff against the relevant defendant. Similar allegations are made against all defendants and appear to be made irrespective of particular facts which might be associated with each plaintiff.

Each plaintiff is bringing a claim for damages for personal injury loss and damage against one or more defendants by reason of alleged torts and other wrongs alleged to have been committed by that defendant. Each claim would have to be considered and proved individually. Each plaintiff would have to establish that a named defendant owed a duty of care to her; was in breach of that duty of care and such breach caused the injury or damage alleged. Viewed in this context, the defendants appear to me justified in submitting that relatively little progress has been made in the proceedings to date in identifying the particular claims of each plaintiff against the relevant defendant and that it is unlikely that these claims, would if permitted to proceed, come to trial for a further number of years.

The affidavits sworn by Ms. Foley, Mr. Bourke and Mr. Beresford as solicitors for each of the defendants respectfully undoubtedly refer by way of primary prejudice to what I have referred to as the lapse of time from the date of the alleged wrongful acts. However, they also refer to prejudice from delay and lack of progress in the prosecution of the proceedings. I have also concluded from a consideration of the potential witnesses or persons identified therein who might assist the relevant defendant in the preparation of the claims that there are a limited number of persons who have died within the periods of delay identified and more particularly that for other persons, already quite elderly delays of four to five years as a matter of probability will reduce the potential of such persons to give meaningful assistance or act as a witness. I have concluded that each of the defendants as a matter of probability has suffered prejudice by reason of the inexcusable period of delay since the accrual of the causes of action.

Counsel for the plaintiffs submitted that each of these defendants had engaged in the proceedings with the plaintiffs such that it would be unjust to the plaintiffs, notwithstanding any prejudice caused by the delay to dismiss the claims. The engagement relied upon as set out in the affidavits of Mr. Ward sworn in each application. Essentially the engagement alleged falls into two parts:-

1. The arrangements made in relation to the collection of medical records; and

2. The steps taken in the proceedings including in particular compelling the delivery of the statement of claim and requiring the furnishing of replies to particulars.

In response, it is submitted on behalf of all the defendants that these were reasonable steps to have taken on behalf of the defendants and should not on the facts debar the defendant from obtaining the order to dismiss. Also, that the defendants could not ascertain properly until after the delivery of the statements of claim and replies to particulars whether or not the defendants would be able to deal with the claims or whether the prejudice or unfairness to the defendants or indeed the inability for a fair trial to be conducted would be such that the defendants would be entitled to an order for dismissal.

The principles set out in Primor Plc v. Stokes Kennedy Crowley and Ors. make clear that the courts must consider the engagement of the defendant with the plaintiff on the facts of each case. It appears to me that the steps taken by the defendants in relation to each of these plaintiffs to date in the context of the relevant claim were reasonable and are not such as to debar their entitlement to an order to dismiss if the facts otherwise so dictate. Inevitably the steps taken by the defendants will have resulted in the plaintiff incurring costs in processing their claim.

Counsel for the plaintiffs submitted that where a plaintiff fails to duly prosecute a claim that the defendant is put on election either to bring an application to dismiss for want of prosecution or to compel the plaintiff to proceed. I do not accept that any such generalised principle exists. Rather it appears to me that the conduct of the defendant must be considered on the facts of each case as set out by Hamilton CJ in Primor Plc v. Stokes Kennedy Crowley. It must be open to a defendant as was done in two of these claims to bring a motion to dismiss in the absence of a statement of claim but if it is then delivered not to pursue the motion without necessarily being prevented from bringing a further motion to dismiss for want of prosecution at a later stage if the facts so require.

In Ms. Garland and Ms. Nevin's claims reliance was sought to be placed upon the fact that the defendants' current motion to dismiss was issued after the plaintiffs' motion for judgment in default of defence. I do not consider that this materially alters the balance between the plaintiff and the defendant.

Conclusion on want of prosecution

I have concluded on each of the defendants' applications to dismiss for want of prosecution that even limiting my consideration of the impact of delay to those periods since the accrual of the causes of action considered to be inexcusable that the balance of justice is against permitting each plaintiff to proceed with her claim and accordingly that I should grant an order to dismiss in respect of her claim on this ground. I would emphasise that a significant factor in my so concluding is the nature of the claims as pleaded and lack of real progress made on behalf of the plaintiff in each of these claims since the commencement of proceedings. Even taking into account the very difficult nature of the claims sought to be made out, the almost standard form statement of claim; scattergun approach in the allegations of wrongful acts and generalised responses in the replies to particulars and complete lack of specificity relating to the individual plaintiff and relevant defendants mean both that the probable length of time between now and the date of a trial is increased as is the prejudice caused by the inexcusable delay and the prejudice and unfairness to the defendant in allowing the claim as pleaded and particularised to proceed.

Dismiss in the interest of justice.

For the reasons identified above the questions which I have to consider on the facts of each case are:-

1 Is there, by reason of the lapse of time a real and serious risk of an unfair trial; and

2 Is there by reason of the lapse of time a clear and patent unfairness in asking the defendant to defend the action.

The relevant lapses of time are the periods between the wrongful acts alleged on which a court will be asked to make determinations and the probable trial dates.

I have earlier identified the factors to be considered by the court in reaching a conclusion on the above questions. On the facts of each of these applications my consideration is as follows:-

1 None of the defendants can be considered to have contributed in any significant way to the relevant lapse of time.

2 The claims being made are extremely wide ranging both in the nature of the wrongful acts alleged and the time over which they are alleged to have occurred.

3 There will be significant factual issues to be determined by the court if the claims went to trial.

4 There will inevitably have to be much oral evidence. Counsel for the plaintiffs sought to submit that significant issues might be determined on documentary evidence. I do not accept this, the primary factual issues in relation to what was done; the scientific information available to or which ought to have been available to the defendants and the decisions taken in light of same would have to be decided on oral evidence.

5 I am satisfied on the affidavits sworn by the solicitors for each of the defendants that a significant number of relevant witnesses to the fundamental claims made which appear to relate to the period prior to and early years of smoking of each of the plaintiffs will not now be available to the defendants.

6 The lapse of time between many of the wrongful acts alleged and hence factual issues the court would have to decide and a probable trial date is extremely long. In relation to certain issues in all cases it may be almost 100 years. For many others it will be at least 60 years in Ms. Manning's and Ms.Garland's cases and 40 years in Ms. McNevin's case.

My reasoning in reaching the above conclusions is perhaps most easily understood by taking as an example two of the claims which appear fundamental to each of the plaintiffs' cases against her defendant. In para. 4 of each of the statements of claim it is pleaded:

"At all material times, the Defendant in the full knowledge as to the addictive nature of the tobacco and cigarettes manufactured and supplied by it manipulated and orchestrated the tar and nicotine levels to increase and continue the addictive nature of the said products for the purpose of commercial gain without any or any due regard as to the health, safety or welfare of the plaintiff and other availing of and using the said product, and for the purpose solely of creating a dependence thereon."

In replies to particulars Ms. Manning has identified that the "material times" in the above paragraphs refer to "when the defendant initially started selling/distributing/manufacturing cigarette products". It is further clarified in the second reply to particulars that the plaintiff alleges that the defendant ought to have ceased manufacture, distribution, sale and supply of all tobacco products prior to 1948.

In Ms. Garland's case, in the replies to particulars "material times" is identified as referring to "when the defendant initially started the manufacturing, distribution and supply of the cigarette products". In reply to the notice for further and better particulars it is stated "in addition in relation to this particular plaintiff from 1942 when she commenced smoking".

In Ms. McNevin's case the "material times" are identified as referring to "when the defendant initially started selling/distributing/manufacturing cigarette products".

At para. 5 of each of the statements of claim there is a further broad claim made in the following terms:

"In addition, at all material times the defendant, its servants or agents knew or ought to have known that the said tobacco and cigarette products gave rise to and did cause a risk of harm and damage and adverse medical and psychological consequences and despite the said knowledge continued to advertise, manufacture, distribute and sell the said products without any or any adequate or appropriate regard to the health of consumers of the said product including the plaintiff and/or were reckless as to the consequences and the health of consumers of the said product including the plaintiff".

In the replies to particulars the plaintiffs have identified that "at all material times" as meaning in relation to this plea "since the defendant started selling/distributing/manufacturing cigarettes in Ireland".

Further the servants or agents of the defendant are stated to "include subsidiaries, parent companies, successors, assignees, manufacturers, distributors and all other companies relating to the manufacture/distribution and sale of cigarettes and/or tobacco products". The plaintiffs have each though requested failed to identify when it is alleged the particular defendant started selling, distributing or manufacturing in Ireland.

Amongst the particulars of negligence (and which might appear to support either of the above claims) in the statements of claim are:-

(i) Persisting in manufacturing, marketing and distribution the said cigarettes notwithstanding their knowledge of the fact that same, when used as intended, gave rise to dependence and were harmful to human health;

(j) Failing to desist from manufacturing, marketing and/or distributing the said cigarettes notwithstanding that it knew or ought to have known that same when used as intended, gave rise to dependence and were harmful to human health;

(k) Failing to take any or any adequate care in or about the processing of the said cigarettes;

(l) Failing to heed warnings in scientific and medical literature and/or in the scientific and medical community of the fact that cigarettes, when used as intended, gave rise to dependence and were harmful to human health;

(p) Failing to properly investigate research and advise upon the extent and manner in which the said product, when used as intended, gave rise to a dependence and were harmful to human health;

(r) Knowingly withholding from the plaintiff, information to enable her to make an informed decision as to whether or not she used the defendant's product;

The above are only a small sample of the claims and particulars of negligence alleged. It seems difficult to conclude other than I have done above in the light of such claims being made and persisted with.

As is clear from the above the allegations being made by the plaintiffs go back to the time at which it is alleged that the defendants commenced selling/distributing/manufacturing cigarettes in Ireland. On Ms. Foley's affidavit whilst there appears some doubt about the alleged activity in Ireland of Benson and Hedges Limited prior to the date Ms. Manning alleges she commenced smoking it has long been manufacturing cigarettes in the United Kingdom. Mr. Bourke's affidavits suggests that the defendant John Player & Sons Limited forms part of a group which has carried on the business of manufacturing/selling/distributing cigarettes in Ireland at least through the entire of the twentieth century. In the case of P.J. Carroll & Co. it appears from Mr. Beresford's affidavit that it commenced manufacturing cigarettes in Ireland in 1906. Hence it appears in respect of each of the defendants that as a matter of probability the claims would require the court to decide issues of fact pertaining to the state of scientific knowledge which they either were aware of or ought to have been aware of and the precise decision taken by the defendants not only in relation to the manufacturing but including detailed decisions effecting such matters as the level of nicotine over much of the twentieth century. Many of these issues would have to be determined on oral evidence and it is improbable that the relevant witnesses would be available to the defendants relating to the earlier part of the twentieth century.

For a court to be asked in the years 2006 or 2008 or later to determine issues of fact of the nature which would be required by these claims as to what was or was not done and why in the early part or even 40 years ago and in the probable absence of many of the persons actually involved in the words of Henchy J. in O'Domhnaill v Merrick [1984] IR 151 "puts justice to the hazard".

Accordingly, I have concluded that by reason of the lapse of time between the multiple wrongful acts alleged more than 40 years ago in Ms. McNevins case and more than 60 years ago on Ms. Manning and Ms. Garland's cases and the probable hearing date of these plaintiffs' claims that there is a real and serious risk of an unfair trial if these claims were to be permitted to continue.

I have also concluded by reason of the same lapse of time and nature of the claims that there would now be a clear and patent unfairness in asking the defendants to defend each of these actions now brought against them.

Order

On each of the motions I will make an order dismissing the named plaintiff's claim.

Approved: Finlay Geoghegan J.