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Cite as: [2004] IEHC 324

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THE HIGH COURT

[2004] IEHC 324

[1992 No. 5107P]

BETWEEN

MARIE BIRD

PLAINTIFF

AND

JAMES DEVINE, THE MOTOR INSURERS' BUREAU OF IRELAND, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Ex tempore judgment of the High Court (by Mr. Justice Herbert) delivered the 17^th May, 2004.

I am perfectly satisfied that I should allow the amendment sought in this Application.

It seems to me I start with the proposition that whatever may have been said in Weldon v. Neale (1887) 19 QBD 394 or in Bank of Ireland v Connell [1942] IR 1 which latter decision post dates the coming into operation of the 1937 Constitution, the right to litigate accepted in the Constitution of 1937 must be the sovereign touchstone in these courts by which one measures any application to or proceedings in the court.

Starting then from this basis, it seems to me that I can look at the separate issues raised in this case.

The accident which gives rise to the proceedings occurred on the 22^nd June, 1991 and I can look at the delay as a separate heading. I can also look at the explanation that has been offered for the delay in this case. However, when it is all added together the court should be slow to do something limiting the right to litigate or reducing access to the court.

I can look at whether there is irretrievable prejudice to the parties opposing the Application. There is no evidence offered from one defendant and the other did not offer any statement except through Counsel that there is irretrievable prejudice. The Bureau's case is basically that they do not want to be drawn into a constitutional issue. That may not be the case. It does not seem to be a very realistic argument in any event for refusing the application.

There is an issue of credibility on the facts of the case. That issue is still there.

The amendment sought raises a purely legal argument. On the facts, the plaintiff says that the particular section, (section 65(1)(a) of the Road Traffic Act 1961), is unconstitutional. It is already pleaded that the section is unconstitutional under Article 40.3.1° and 2° and now the plaintiff wishes to add under Article 15.2.1° as well. Accordingly, it is a net point of law which is sought to be added and it relates to a constitutional argument that already exists on the pleadings.

It seems to me that there is no evidence of irremediable prejudice in this case.

That leads me to the further issue of law as to whether twelve years after the accident this point may be justly raised. The plaintiff must explain exactly why it is only raised at such a late stage and an objective explanation is required. Once one gets to twelve years, the court will be prepared to assume that prejudice exists even in the absence of specific evidence of prejudice. I think I should look at the narrower gap in time from the judgment in Laurentiu v Minister for Justice, Equality and Law Reform [1994] IR 26 where nothing happened. It seems to me that five years taken alone is not inordinate or inexcusable since there is no evidence of actual prejudice. There is a constitutional guarantee that a citizen should have a right of access to the court and have a right to litigate. Since it is the case that this particular plaintiff suffered very serious injury, losing an eye and suffering extensive facial scars, it is clearly a case which deserves to be litigated before the courts.

The position if I understand the law correctly is that the purpose of pleadings is not to carry on pre-trial warfare. That went out with the Middle Ages. Every justiciable issue ought to be before the courts.

An issue should only be excluded for a very serious reason. The balance of justice in this case is in favour of allowing the amendment and I propose to allow it.

Eoin McCullough SC, the plaintiff's counsel, only raises this proposed additional requirement because of the Supreme Court judgment in Laurentiu v Minister for Justice Equality and Law Reform. This decision was only handed down on the 20^th May, 1999. The court accepted the legal argument that the Legislature is the only power under the Constitution which has the right to legislate and it could not hive off part of that function to the Executive or any part of the Executive. The argument which the plaintiff proposes to make is that in section 65(1)(a) of the Road Traffic Act 1961, the Oireachtas purports to confer on the appropriate Minister the right to legislate and there is no authority for this. The plaintiff's counsel fairly says that if Laurentiu had not been decided the need to make this submission would not have arisen. That seems to be a very fair explanation as to why the point was not raised before now. There is nothing wrong in the plaintiff now availing of clarification of the Law arising from this decision.

The explanation for the delay offered must be both objective and rational. Here there is an unfortunate gap of five years from the 20^th May, 1999 when the judgment in Laurentiu was delivered. Why has this gap arisen? No real explanation has been offered for that but I do not think that that gap could be really said to be inordinate and inexcusable, particularly in the absence of specific evidence of prejudice to the defendants arising from this delay.

I will allow the amendment.

[Subsequently Mr. Justice Herbert directed the costs of the application be awarded to the defendants, the said costs to be taxed in default of agreement with a stay on execution pending the further order of the court].