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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Connor v. John Player and Sons Ltd. & Ors [2004] IEHC 99 (12 March 2004)
URL: http://www.bailii.org/ie/cases/IEHC/2004/99.html
Cite as: [2004] 2 ILRM 321, [2004] IEHC 99
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1997 No. 15903P
BETWEEN
PLAINTIFF
DEFENDANTS
JUDGMENT of Mr. Justice Quirke delivered on the 12 day of March 2004.
This is an appeal by the plaintiff against orders made pursuant to the provisions of O. 63 r. 1 (a) of the Rules of the Superior Courts on 5th December, 2003, 28th November, 2002, and 10th April, 2003, whereby the Master of the High Court dismissed the plaintiff's claims against the first, second and third named defendants respectively for want of prosecution.
The Plaintiff seeks orders from this court setting aside the orders of the Master and permitting her to proceed with her claims against the defendants.
It is pertinent to note from the outset that the plaintiff's claim is one of a series of approximately 138 similar claims, which have been commenced on behalf of various claimants by the plaintiff's solicitors by way of Plenary Summons against the three defendants.
The defendants are corporate bodies engaged in the manufacture, distribution and supply of tobacco and cigarettes within this jurisdiction. The plaintiff is claiming damages from the defendant for personal injuries, loss and damage allegedly sustained by the plaintiff by reason of negligence, breach of duty and breach of contract on the part of the defendants inter alia, (a) in exposing the plaintiff to the risk of injury by causing or permitting her to smoke cigarettes, when they knew, or ought to have known, that it was unsafe and dangerous for her to do so and (b) by continuing to manufacture, distribute and market cigarettes and tobacco without warning, or adequately warning, the plaintiff of the dangers associated with smoking and exposure to tobacco and tobacco smoke.
Claims in similar, if not identical, terms have been made by the plaintiff's solicitors on behalf of 137 other persons and it is acknowledged by the parties that the existence of those other claims made concurrently with the plaintiff's claim by the same solicitors against the same defendants has a relevance to this appeal.
The plaintiff's claim against the defendants now stands dismissed by the Master of the High Court on the grounds that the plaintiff has been guilty of such inordinate and inexcusable delay in prosecuting her claim that the balance of justice requires that her action should not proceed.
The plaintiff now seeks an order setting aside the Master's order and permitting the plaintiff to proceed with her action.
RELEVANT FACTS
1. The plaintiff's claim was commenced by the issue of a plenary summons on 23rd December, 1997. Some 364 days later (on the 22nd December, 1998), the summons was served on the defendants. Within a further 30 days (by 21st January, 1999), appearances had been entered on behalf of all three defendants.
2. On 12th and 13th March, 2002, notices of intention to proceed were issued on behalf of the defendants. Thereafter, on 5th September, 2002 and 17th September, 2002, notices of motion were issued on behalf of the third and second named defendants respectively seeking the relief which is the subject of this appeal.
On 22nd and 26th November, 2002, statements of claim were delivered on behalf of the plaintiff outlining the plaintiffs claim against all three defendants in identical terms.
By order of the Master dated the 28th November, 2002 the third named defendant was granted the relief which is the subject of this appeal.
By order of the Master dated 10th April, 2003 the second named defendant was granted the relief which is the subject of this appeal.
On 20th August, 2003, a notice of motion was issued on behalf of the first named defendant seeking the relief which is the subject of this appeal and that relief was granted by order of the Master of the High Court dated 5th December, 2003.
It follows from the foregoing that a period of four years and eleven months elapsed between the date of issue of the plenary summons in these proceedings and the delivery of the statement of claim. Two of the defendants had issued notices of motion seeking to dismiss the plaintiff's claim for want of prosecution some two months before the statement of claim was delivered. The other defendant (the first defendant) issued a similar notice nine months after the delivery of the statement of claim.
3. By letter dated 19th February, 1999, Messrs. Arthur Cox and Company, solicitors on behalf of the third named defendant, wrote to the plaintiff's solicitors, inter alia, in the following terms:
"It is clear that all medical records and notes relating to your clients are of critical importance and of relevance to the proceedings.
We write to request that you immediately take all necessary steps to ensure that your clients and all doctors, hospitals, and other parties, who may hold medical and other records and documents relating directly or indirectly to your client's health carefully identify and preserve such records and documents.
We believe that it would be of benefit to all parties to the litigation referred to above that all medical records and notes relating to your clients be collected from all possible locations at which they may currently be held. We would be prepared to undertake the task of collection of medical records and notes for the purposes detailed above, subject to any arrangements that might need to be agreed with the other parties to this litigation. We should be obliged if you would take your client's instructions and let us know whether or not your clients are prepared to consent to this proposal."
In response the plaintiff's solicitors replied by letter dated 3rd March, 1999, in the following terms:
"With reference to your letter dated 19th ult. we have considered same and subject to our client's instructions we would be willing to provide you with the required authorities on the following basis;
1. That copies of the medical records and notes are made available to us immediately.
2. That the authority is provided on a case by case basis.
3. That we are copied on all communications relating to the collection of our client's medical records and notes.
4. That the defendants firm of solicitors which collects the medical records and notes is responsible for all costs associated therewith.
On receipt of your consent to the above we will forward …. Authority Forms to our clients for signature and return. We will then forward same to you on a case by case basis…"
Messrs. Arthur Cox and Company responded by letter dated 1st April, 1999 indicating that all three defendants were in agreement with the proposed arrangement for the collection of medical records. That method of collection was adopted by the parties to these proceedings (and by the other 137 claimants) in the terms outlined in the exchange of correspondence to which I have just referred.
4. By letter dated 26th November, 2001, Messrs. Arthur Cox & Company, on behalf of the third defendant, wrote to the plaintiff's solicitors in the following terms:
"We refer to the above proceedings which were issued on 23rd December, 1997, on behalf of your client Eileen O'Connor. We accepted service of the Plenary Summons on behalf of Benson and Hedges (Dublin) Ltd. on 22nd December, 1998, and entered an appearance thereto on 25th January, 1999. To date no Statement of Claim has been delivered notwithstanding the expiry of three years and eleven months since these proceedings were first issued.
The continuing delay in prosecuting these proceedings is causing ongoing prejudice to our client. If your client intends to proceed with her claim we require you to deliver a Statement of Claim on her behalf within 28 days from the date of this letter. We reserve our client's position generally in relation to the issue of delay."
In response, Messrs. Ward and Fitzpatrick, on behalf of the plaintiff, by letter dated 29th November, 2001, indicated:
"We refer to your letters dated 26th November, seeking Statements of Claim in approximately 40 individual cases. We are surprised at the contents of the letter and refer to your letter dated 19th February, 1999, in which you agreed to provide medicals in each individual action. Unless and until we receive written confirmation from you that all medicals have been taken up and forwarded to this office we are not in a position to file our Statement of Claim.
We look forward to hearing from you urgently in the matter."
Between 10th December, 2001 and 18th April, 2002, there was a somewhat heated exchange of correspondence between the solicitors on behalf of the third named defendant and the solicitors on behalf of the plaintiff, which disclosed a clear difference of view as to the cause of the delay by the solicitors on behalf of the plaintiff in delivering a statement of claim.
In summary, the defendants rejected the contention advanced on behalf of the plaintiff that the collection of so-called "lifetime medical records" had caused or contributed to the delay in the delivery of the statement of claim.
A letter from the solicitors on behalf of the third named defendant, dated 18th April, 2002, concluded as follows:
"We do not propose to refrain from our threatened applications unless Statements of Claim are delivered forthwith.
We reserve our position in relation to the serious delay of the plaintiff in advancing this litigation, and to the ongoing prejudice caused to our clients."
5. By letter dated the 17th July, 2002, the solicitors on behalf of the plaintiff wrote to Messrs. Arthur Cox and Company in the following terms: "You refer to our telephone conversation in relation to the cases in which we have received your Notice of Intention to Proceed.
We confirm that we are reviewing those cases and taking the clients instructions thereon and we will be in a position to revert to you (by close of business 24th, July) with a comprehensive list of cases in which we have no instructions to proceed. We would request that you would refrain from issuing any Motions as the matters are being dealt with currently.
The difficulty for us is that it is taking longer for us to get clients instructions than originally anticipated but as advised we would hope to have a comprehensive list over to you presently."
By letter dated 26th July, 2002, Messrs. Arthur Cox and Company replied, inter alia, in the following terms:
"…We first spoke to you in relation to this matter on 3rd July, 2002, when we suggested to you that you should revert to us within seven days, indicating those of your clients' cases which were proceeding and those which were not. You did not respond to us by 10th July. We telephoned you on a number of occasions but were unable to speak to you. Eventually we left a message with your receptionist, to the effect that as no contact had been received from you, we were proceeding with Motions to dismiss. We have issued and served two such motions, returnable for 24th October, in the case of Mary Sullivan and Jean Thompson respectively. These motions were served on you before your letter dated 17th July, was transmitted to us on 19th July.
Having received your letter dated 17th July, we deferred issuing further Motions pending hearing from you by close of business on 24th July. This deadline has now passed and we are now instructed to proceed with motions to dismiss in all cases having regard to your persistent and continued failure either to discontinue these claims or to deliver Statement of Claim.
In addition to the two cases in which motions have already been issued, our clients are defendants to claims brought by 42 plaintiffs. As of now, Motions to dismiss are in preparation in relation to all of such cases. However, we are instructed to withhold the issue of these motions for one further week, within which period we await hearing from you with the Statement of Claim in relation to each case which is proceeding, or with a notice of discontinuance in relation to all cases which are not proceeding. If we have not heard from you as aforesaid by close of business on 2nd August, 2002, Motions to dismiss will be issued in all cases…"
6. By letter dated 10th December, 2001, Messrs. Goodbody, on behalf of the second defendant, wrote to the plaintiff's solicitors in the following terms:
"The Plenary Summons was issued on 23/12/1997 and was served on us on 22/12/1998. We entered a "without prejudice" Appearance on behalf of Rothmans of Pall Mall (Ireland) Ltd. on 22/12/1998. Even though almost four years have elapsed since you first issued these proceedings you still have not served your Statement of Claim in relation to this matter.
This is both an unjust and inexcusable delay and we reserve our clients right in relation to the past, present and any future delay by you and we also reserve our clients rights in relation to the prejudice to our client which has been or which may be caused by such delay.
We call upon you to serve a Statement of Claim within 21 days if your client intends to proceed with this claim."
By letter dated 10th January, 2002 the plaintiff's solicitors responded in the following terms:
"We refer to your letter of 10th December, seeking Statements of Claim in approximately 50 individual cases. We are surprised at the contents of your letters and refer to your letter dated 25th February, 1999 in which you agree to provide medicals in each individual action. Unless and until we receive written confirmation from you that all medicals have been taken up and forwarded to this office we are not in a position to file our Statement of Claim."
There followed an exchange of correspondence and a difference of view similar to that which occurred between the plaintiffs solicitors and the solicitors on behalf of the third named defendant.
This exchange of correspondence concluded with a letter from Messrs. Goodbody to the plaintiff's solicitors dated 12th April, which contained the following warning:
"In the circumstances, we do not see any reason why our clients should accede to your request that we defer making applications and we intend to advise them to proceed to seek Orders."
7. By letter dated the 19th November, 2001, Messrs. McCann Fitzgerald, the solicitors on behalf of the first named defendant, wrote to the plaintiff's solicitors in the following terms:
"…These proceedings were issued by you on 23rd December, 1997, and served on our client on 22nd December, 1998. The defence of this action has been and continues to be prejudiced by your failure to progress these proceedings including service of a Statement of Claim. We urge you to serve a Statement of Claim within 28 days if it is your client's intention to proceed with this claim and we reserve our client's position in relation to the delayed date."
The plaintiff's solicitors replied in the following terms by letter dated 29th November, 2001.
"We refer to your letter stated 19th November, seeking Statements of Claim in approximately 80 individual cases. We are surprised at the contents of the letter and refer to your letter dated 24th February, 1999, in which you agreed to provide medicals on each individual action. Unless and until we receive written confirmation from you that all medicals have been taken up and forwarded to this office we are not in a position to file our Statement of Claim.
We look forward to hearing from you urgently in the matter."
By letter dated 1st February, 2002, the solicitors on behalf of the first defendant wrote to the plaintiff's solicitors inter alia in the following terms:
"Over four years have elapsed since you first issued proceedings naming our client as a defendant. Before instituting proceedings, we assume that you obtained full and detailed instructions in relation to plaintiff's smoking and medical histories including details of any condition which it is alleged would cause to the consequence of smoking cigarettes manufactured by our client. As such, we see no reason why you are not now in a position to serve Statements of Claim particularly since you have confirmed that they have been prepared.
We repeat our demand that you deliver detailed Statements of Claim in cases where your clients intend to proceed. For the avoidance of doubt we continue to reserve our client's rights in relation to the ongoing delay."
This letter contained a reference to an earlier letter in which the plaintiff's solicitors had informed Messrs. Arthur Cox and Company, on behalf of the second named defendant, that:
"…We do have draft Statements of Claim ready and on your confirmation that you have provided us with the agreed medicals and notes for individual clients we will be in a position to serve these Statements of Claim."
– (See letter from Arthur Cox and Company to the plaintiff's solicitors dated 15th January, 2002.)
8. Between the 17th February, 2000, and 27th July, 2001, various documents in relation to the medical history of the plaintiff were collected by the solicitors on behalf of the defendants and copies of those documents were furnished to the plaintiff's solicitors. There was correspondence between the solicitors in relation to these records up to August 2003.
THE RELIEF SOUGHT
Order 20 rule 3 of the Rules of the Superior Courts provides as follows:
"Where the defendant enters an appearance to a plenary summons and, at the time of entering such appearance or within eight days thereafter, gives notice in writing to the plaintiff or his solicitors, that he requires a statement of claim to be delivered, the plaintiff, if he has not already done so, shall deliver a statement of claim within 21 days from the receipt of such notice".
Order 27 rule 1 provides as follows:
"If the plaintiff, being bound to deliver a statement of claim, does not deliver same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the court to dismiss the action, with costs, for want of prosecution; and on the hearing of such application the Court may order the action to be dismissed accordingly, or may make such order on such terms as the Court shall think just."
Order 63 rule 1(8) provides as follows:
"In addition to any orders which the Master may make under any other of these Rules the Master may make any of the following orders:
"… (8) An order to dismiss an action with costs for want of prosecution or for failure to make an affidavit of discovery or to answer interrogatories."
The principles of law which apply to an application to dismiss an action for want of prosecution are now well settled, having been identified in a number of decisions of the courts within this jurisdiction, notably by the Supreme Court (Hamilton C.J.) in the case of Primor Plc v. Stokes Kennedy Crowley and Anor. [1996] 2 I.R. 459.
Those principles were usefully summarised in the headnote to that case (at p. 460) in the following terms:
"(1) that the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice so required;
(2) that the party who sought the dismissal on the ground of delay in the prosecution of the action must establish that the delay has been inordinate and inexcusable;
(3) that even where the delay had been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice was in favour of or against the case proceeding;
(4) that when considering this obligation the court was entitled to take into consideration and have regard to –
(a) the implied constitutional principles of basic fairness of procedures,
(b) whether the delay and consequent prejudice in the special facts of the case were such that made it unfair to the defendant to allow the action to proceed and made it just to strike out the action,
(c) any delay on the part of the defendant, because litigation was a two party operation and the conduct of both parties should be looked at,
(d) whether any delay or conduct of a defendant amounted to acquiescence on the part of the defendant in the plaintiff's delay,
(e) the fact that conduct by the defendant which induced the plaintiff to incur further expense in pursing the action did not, in law, constitute an absolute bar preventing the defendant from obtaining a dismissal but was a relevant factor to be taken into account by the court in exercising its discretion whether or not to dismiss, the weight to be attached to such conduct depending on all the circumstances of the particular case,
(f) whether the delay had given rise to a substantial risk that it was not possible to have a fair trial or it was likely to cause or had caused serious prejudice to the defendant,
(g) the fact that the prejudice to the defendant referred to in (f) might arise in many ways and be other than that merely caused by the delay, including damage to the defendants' reputation and business."
The application of those principles to the instant case requires consideration of the following questions:
1. was there inordinate delay on the part of the plaintiff in prosecuting her claim against the defendants,
2. if there was such inordinate delay, was that delay excusable and
3. if the delay has been both inordinate and inexcusable, is the balance of justice in favour of or against this case proceeding, having regard to the facts disclosed on the evidence.
1. WAS THE DELAY INORDINATE?
There was a delay of almost precisely 12 months between the issue and service of the plenary summons in this case.
Within 30 days of the service of the plenary summons, all three defendants had entered appearances requiring delivery of a statement of claim within the 21 days limited in that behalf by O. 20 r. 3 of the Rules of the Superior Courts.
Notwithstanding that time limit, statements of claim were not delivered by the plaintiff until 22nd November, 2002, which was a period in excess of three years and ten months after the dates of entry of appearance and four years and eleven months from the date of service of the plenary summons.
It would be difficult to envisage circumstances where such a delay between the issue and service of proceedings and the delivery of a statement of claim would not be described as inordinate and no such circumstances have been suggested by, or on behalf of, the Plaintiff.
The fact that the proceedings themselves comprised a claim for damages arising out of alleged events covering a period in excess of 50 years adds even greater weight to the contention advanced on behalf of the defendants, (which I accept without qualification), that the delay on the part of the plaintiff in delivering a statement of claim was inordinate within the meaning ascribed to that adjective in the Primor case and the other authorities upon which reliance has been placed. Accordingly, I am satisfied that the defendants have discharged the onus which rests upon them of establishing that there has been inordinate delay on the part of the plaintiff in prosecuting her claim against the defendants.
2. WAS THE DELAY BOTH INORDINATE AND INEXCUSABLE?
The principle identified by Hamilton C.J. in Primor to the effect that:
"It must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;" has been confirmed and re-stated by the Supreme Court (Fennelly.J) in Anglo Irish Beef Processors v. Montgomery [2002] 3 IR 510 in the following terms:
"It is always necessary for the defendant applicant to demonstrate, and he bears that burden, that the plaintiff has been guilty of inordinate and inexcusable delay…"
Mr. Murray S.C argued that where inordinate delay has been proved, some explanation for the delay is called for from the plaintiff. He pointed out that the plaintiff requires from the court an extension of the time within which to deliver a statement of claim and contended that this Court should prima face refuse to grant such an extension in the absence of an explanation (see the decision of Carswell J. in Hughes v. Hughes [1990] N.I. 295).
In the instant case, the plaintiff has, in correspondence and otherwise, voluntarily offered explanations aimed at excusing the delay in prosecuting her claim and the defendants have freely undertaken the onus of establishing, on the evidence, that those explanations are inadequate and that the plaintiff's delay has been both inordinate and inexcusable.
Although the onus of establishing that the delay complained of has been inexcusable clearly rests upon the party so alleging, the onus may be discharged by way of evidence and argument demonstrating that no reasonable or credible explanation has been offered, or can reasonably be said to exist, which would account for, or excuse, the delay.
The explanations, or excuses, offered on behalf of the plaintiff can be summarised as follows:
1. It was necessary to collect the plaintiff's "lifetime medical records". The solicitors on behalf of the defendants undertook to collect those records and to provide the plaintiff's solicitors with copies thereof. An ongoing collaborative process was commenced in which the defendants participated and acquiesced. It is claimed that this resulted in delay between February 1999 and November 2001.
2. The plaintiff was one of some 138 claimants, who were represented by the same solicitors, who were seeking similar relief against the same defendants. It is claimed that, as part of the ongoing collaborative process, the plaintiff's solicitors, in early 2002, sought to "streamline" the process and to withdraw or discontinue claims on behalf of persons who no longer wished to make claims against the defendants. The plaintiff claims that this "streamlining" process in respect of other claimants contributed further to the delay in prosecuting her claim and
3. Whilst perusal of her medical records was not essential to the preparation of the plaintiff's statement of claim, it is claimed that such perusal was required before a decision could be taken as to whether or not her claim should be prosecuted against the defendants.
1. "Lifetime medical records".
By letter dated 19th February, 1999, the solicitors on behalf of the third named defendant offered to collect the lifetime medical records in respect of the plaintiff, acknowledging that such medical records and notes were ".. of critical importance and relevance to the proceedings."
This offer was accepted on behalf of the plaintiff by letter dated 1st March, 1999. Thereafter, copy medical reports were provided by Messrs. Goodbody and Company, on behalf of the second named defendant, on various dates and in particular on 30th May, 2000, 23rd August, 2000 and 12th September, 2000.
There was additional correspondence between Messrs. Goodbody and the plaintiff's solicitors in relation to medical records between 17th February, 2000 and 9th August, 2003. On 5th June, 2003, the plaintiff's solicitors were in correspondence with Dr. Egan in relation to the plaintiff's medical records.
Undeniably, therefore, there was agreement between the parties in relation to the collection of "lifetime medical records" and that these records were "…of critical importance and relevance to the proceedings".
The fact of that agreement, however, did not relieve the plaintiff of her obligation to prosecute her claim against the defendants with reasonable expedition.
I have referred earlier to the fact that the plaintiff's claim is for damages for alleged injury arising out of events covering a period in excess of 50 years. The need for the expeditious prosecution of such a claim is obvious and has been confirmed by the Supreme Court (Murphy J.) in Collins v. Bus Atha Cliath (Unreported, Supreme Court 22nd October, 1999). In that case the court observed, inter alia, (at page 1) that:
"The delay, and that there was, in instituting the proceedings was not fatal to the plaintiff's claim. On the other hand it was pointed out by Henchy J. in Sheehan v. Amond [1982] I.R. 235 that where there is delay in instituting proceedings the subsequent steps should be taken with expedition."
In the instant case, the plaintiff had received copies of most of her medical records by the end of the year 2000, notwithstanding correspondence in relation to medical details as late as 9th August, 2003.
2. The "streamlining" process.
Evidence has been adduced indicating that at some time early in the year 2002, the plaintiff's solicitors engaged in an exercise whereby they took instructions from the 138 claimants in order to establish whether or not they wished to continue to prosecute their claims against the defendants. In consequence of this exercise, the majority of those claimants withdrew their claims against the defendants.
On behalf of the plaintiff it is contended that this was a "streamlining" process", which contributed to the delay on the part of the plaintiff in delivering a statement of claim.
In response, the defendants contend that they were not made aware of any such "process" until July of 2002 and their agreement to defer the issue of motions to dismiss for a brief period on this account cannot be construed as acquiescence of the kind which would comprise a contributory factor in relation to the delay complained of.
3. In an affidavit sworn on 29th January, 2003, Mr. Ward on behalf of the plaintiff candidly conceded that:
"…Whilst I accept that the sight of medical recorded in itself is not essential to the preparation of the Statement of Claim, those medical records are required before any further steps are taken in relation to the prosecution of each of the individual plaintiff's cases."
Mr. Cush SC, on behalf of the plaintiff, argued that the statement of claim could not be delivered on behalf of the plaintiff until a decision had been made after consultation with, and upon the instructions of, the plaintiff. He contended that similar "decisions" were required of the other claimants on whose behalf the plaintiff's solicitors appeared. He said that a need for these "decisions" gave rise to the "streamlining process" outlined above and that this was a lengthy process which caused or contributed to the delay in the delivery of statements of claim and in particular in relation to the delivery of the plaintiff's of statement of claim.
It was not contended at any time on behalf of the plaintiff that the collection of evidence and the preparation of the case as to liability against the defendants was a cause of or contributory factor in the delay complained of in this case.
Conclusion
In this case there was a delay of four years and eleven months between the date of service of the plenary summons and the delivery of the statement of claim.
It is claimed that the plaintiff developed emphysema which was first diagnosed on or about December of 1994.
No evidence has been adduced as to precisely when the plaintiff became aware that her injury had a connection with the events complained of in these proceedings and no evidence has been adduced as to when she consulted her solicitors and instructed them to institute these proceedings. No explanation whatsoever has been provided by way of evidence, or otherwise, which would account for the period in excess of thirteen months between the date of issue of the plenary summons and the 19th February, 1999, when the solicitors on behalf of the third named defendants wrote to the plaintiff's solicitors offering to collect the plaintiff's "life medical records".
An explanation has been offered on behalf of the plaintiff for the period between 3rd March, 1999, when the plaintiff's solicitors accepted the offer on behalf of the defendant to collect medical records and 19th November, 2001, when the delivery of a statement of claim was demanded on behalf of the defendants.
I do not find the explanation offered to be a satisfactory one. Insofar as the plaintiff is concerned, it would appear that during this period of almost three years no tangible steps of any kind were made on behalf of the plaintiff to prosecute her claim. No evidence has been adduced of investigations or the collection of evidence as to liability and no claim is advanced that such activity caused or contributed in any way to the delay in the prosecution of the claim.
Although most of the plaintiffs copy medical records were delivered to the plaintiff's solicitors between 30th May, 2000 and 12th September, 2000, (some 78 pages of medical records together with additional x-rays were delivered) the "particulars of personal injury" pleaded in the statement of claim do not reflect a history unique to, or characteristic, of the plaintiff. It comprises a four line plea in terms almost precisely identical to the pleadings delivered on behalf of the other claimants represented by the same solicitors. This fact is explicable because during the course of these proceedings, it was acknowledged on behalf of the parties that the claims made on behalf of each of the 138 claimants represented by the plaintiff's solicitors have been couched in precisely identical terms in respect of liability and special damage and in virtually identical terms in respect of alleged personal injury
It is difficult to avoid the conclusion that virtually nothing was done to prosecute the plaintiff's claim between March of 1999 and November of 2001. No evidence has been adduced indicating consultation with the plaintiff herself, or the collection of evidence of any kind on her behalf. No correspondence has been exhibited other than correspondence indicating that the plaintiff's medical records were being collected by the defendants and that copies were being furnished to the plaintiff's solicitors.
It follows that I find the explanations which have been offered on behalf of the plaintiff for the delay in prosecuting her claim between the date of issue of the plenary summons in December of 1997 and the dates in November of 2001 when the defendants sought delivery of a statement of claim to be unsatisfactory and insufficient to excuse such a period of delay.
It would appear that the demand by the defendants in November 2001 for the delivery of statements of claim from the plaintiff's solicitors resulted in a sequence of events whereby the plaintiff's solicitors sought instructions from the 138 claimants as to whether or not they wished to continue to prosecute their claims. However, this process does not appear to have commenced for a number of months and the statement of claim on behalf of the plaintiff was not delivered until 22nd and 26th November, 2002, which was some twelve months after its delivery had been demanded on behalf of the defendants and significantly after the issue of notices seeking the relief sought herein.
I find therefore that the explanation offered on behalf of the plaintiff to account for this additional twelve month delay is unsatisfactory and insufficient and that the defendants have accordingly discharged the onus of proving that no reasonable explanation or excuse exists which justifies any of the delay complained of.
It follows from all of the foregoing that I find that there has been both an inordinate and inexcusable delay on the part of the plaintiff in prosecuting her claim against the defendants in this case.
3. THE BALANCE OF JUSTICE.
Having found, as I have, that the delay by the plaintiff in prosecuting her claim has been both inordinate and inexcusable, it is now necessary to decide whether, on the facts, the balance of justice is in favour of or against the plaintiff's case proceeding.
The determination of that issue requires consideration of the following:
(1) the conduct of the defendants since the commencement of the proceedings for the purpose of establishing, (a) whether any delay or conduct on the part of the defendant amounted to acquiescence in the plaintiff's delay and (b) whether the defendants were guilty of any conduct which induced the plaintiff to incur further expense in pursuing the action,
(2) whether the delay was likely to cause, or has caused, serious prejudice to the defendants, (a) of a kind that made the provision of a fair trial impossible or, (b) of a kind that made it unfair to the defendant to allow the action to proceed and made it just to strike out the action and
(3) whether, having regard to the implied constitutional principle of basic fairness of procedures, the plaintiff's claim against the defendants should be allowed to proceed or should be dismissed.
(1) The conduct of the defendants.
"…The Court .. (is) .. entitled to take into consideration and to have regard
to … any delay on the part of the defendant, because litigation .. (is) ... a two party operation and the conduct of both parties should be looked at…."
(See Primor Plc. v. Stokes Kennedy Crowley and Anor. (Supra).
It is contended on behalf of the plaintiff that in this case there was delay on the part of the defendants in dealing with the plaintiff's claim and that there was conduct on the part of the defendants which amounted to acquiescence in the plaintiff's delay.
Mr. Cush S.C., on behalf of the plaintiff, argued that, whilst appearances were entered on behalf of the defendants before the end of January, 1999, the defendants' solicitors entered into the collaborative process with the plaintiff's solicitors, which commenced on 19th February, 1999, and did not conclude until November, 2001, (when the solicitors on behalf of the defendants demanded delivery of statements of claim). He contended that by initiating and participating in this collaborative process, the defendants also participated and acquiesced in the plaintiff's delay and cannot now be seen to complain in respect of that delay.
On behalf of the defendants, it is argued that the law does not impose upon defendants the obligation to encourage the prosecution of claims initiated against them, whether by calling upon the claimant to proceed or in any other manner. It was argued that, by collecting the medical records of the persons who had initiated claims against them, the defendants were simply ensuring the preservation of evidence that was relevant to the defence of the claims and that this was done in the interests of the defendants and with the view to enabling them to defend the claims.
I accept the contention that, in general, there is no obligation upon a defendant to expedite the prosecution of the claim made against him or her.
The time within which pleadings must be delivered in claims of this kind are prescribed by the Rules of the Superior Courts, which provide procedures, also, for the extension of those time limits, where that is appropriate.
The obligations imposed upon defendants in such claims are also prescribed by the same Rules.
In the instant case, the plaintiff failed to deliver a statement of claim within the time limited by those Rules and has not sought or obtained from the court an extension of time within which to do so.
However, it is important to have regard to the following extract from the judgment of Ó Dálaigh C.J. in Dowd v. Kerry County Council [1970] I.R. 27 (at page 41):
"In weighing the extent of one party's delay, the Court should not leave out of account the inactivity of the other party. The rules of court provide for actions being struck out for want of prosecution. There is the provision of Order 27 r. 1 and the provision of Order 108 r. 1, where there has been no proceeding for two years. The adage about sleeping dogs may be wise, but it is not specifically conceived to advance the cause of justice. In some instances it is acted upon by a defendant in the hope that he will 'get by' without having to face the peril of being decreed. Litigation is a two-party operation, and the conduct of both parties should be looked at."
In Anglo Irish Beef Processors v. Montgomery [2002] 3 IR 510,the Supreme Court (Fennelly J.) having considered the foregoing passage observed:
"In my view, the defendants should not be lightly blamed for delay which is the fault of the plaintiff. In order to be weighed in the balance against him, it would have to amount in the particular circumstances to something 'akin to acquiescence' as indicated in the judgment of Henchy J., cited above.
The trial judge stated that there had been no suggestion that the defendants had dragged their feet or that motions had to be bought to extract pleadings from them. He went on to express the view that it was 'understandable' that the personal defendants "were content to let sleeping dogs lie rather than invite upon themselves litigation claiming damages which are now in excess of £2 million." His conclusion was that this matter had to be taken into account but that he "attached only little weight to it". This approach was, in my view, perfectly correct."
Mr. Cush S.C. argues that by collaborating with the plaintiff's solicitors in the collection of medical records the defendants acquiesced in the delay on the part of the plaintiff.
It is, of course, correct to say that there was a very substantial period of time between the date upon which appearances were entered on behalf of the defendant and the date upon which the statement of claim was delivered. It is also true to say that the defendants, for a substantial period of time, took no steps to require that the plaintiff should deliver a statement of claim. However, the defendants have at no time been in default in taking any steps or delivering pleading prescribed by the Rules of the Superior Courts and, as I have indicated earlier, the law does not, generally speaking, require defendants to expedite the prosecution of a claim against them.
There is no suggestion in this case of any attempt on the part of defendants to endorse or encourage delay whether implicitly or otherwise and certainly between November 2001 and November 2002 the plaintiff could scarcely have been under the impression that the defendants were acquiescing in delay having regard to the demands made for the delivery of a statement of claim and the subsequent issue of notices of intention to proceed and the notices seeking the relief sought herein.
Mr. Cush S.C. further contends that the defendants' initiation of and participation in the collection of medical records by the defendants comprised "countervailing circumstances" within the meaning ascribed to that term by Henchy J. in O'Domhnaill v. Merrick [1984] I.R. 151.
It cannot be argued that in this case there has been "…conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action" of the kind contemplated by the House of Lords in Roebuck v. Mungovin [1994] 2 A C. 224.
In Primor, the defendant participated in a discovery process which required the plaintiff to embark on what O'Hanlon J. referred to as the "mammoth task" of discovering countless thousands of documents.
O'Hanlon J. was of the view that this participation, together with the defendant's lengthy delay in delivering its defence, was fatal to the defendant's claim to have the matter dismissed.
The Supreme Court concluded that this factor was relevant to the exercise of the discretion to dismiss for want of prosecution but was not fatal to such a claim.
In the instant case, there was no conduct on the part of the defendants which induced the plaintiff to embark on any particular task thereby causing a delay in the prosecution of the case. Neither was there any delay on the part of the defendant in delivering any particular pleading or taking any particular step in the proceedings.
I take the view that, in exercising the discretion which must be exercised in this case, I must take into account the fact that the defendant participated in the process of collecting medical records and sending copies to the plaintiff's solicitors and I must have regard to the argument advanced on behalf of the plaintiff that this amounted to a degree of "acquiescence" on the part of the defendants.
Even if weight were to be attached by this court to the defendants participation in the collection of medical records and to their failure to demand delivery of a statement of claim, and I do not necessarily believe that it should, it is undeniable that, with effect from November 2001, the defendants did vigorously demand delivery of pleadings without success for a further period of twelve months.
Furthermore, I am bound to say that I do not consider that the defendants' participation in the collection of medical reports can, in the circumstances of this case, be deemed to amount to "countervailing circumstances" of the kind which would alone tilt the "balance of justice" sufficiently to require the exercise of discretion in favour of refusing the relief sought.
Prejudice.
It is submitted on behalf of the plaintiff that no prejudice has been shown by the defendants which requires, in the interest of justice, that the plaintiff's claim should be dismissed.
Mr. Cush S.C. contends that the delay of itself, however inordinate and however inexcusable, does not necessarily give rise to prejudice and does not therefore automatically justify dismissal of the proceedings.
The defendants point to evidence of prejudice, including averments indicating that at least one witness who is now deceased would have been relevant and of assistance to the defendants in conducting their defence. However, that witness has not been identified nor has the nature of the evidence which would have been adduced by him or her.
It is correct to say that no concrete evidence has been adduced on behalf of the defendants identifying specific prejudice which the defendants or any of them will suffer by reason of the delay on the part of the plaintiff in prosecuting her claim.
On the overall issue of alleged negligence in the manufacture and distribution of tobacco products, there is, prima facie, no reason for this Court to conclude that the plaintiff's delay has caused the defendants explicit or precise prejudice in their capacity to defend themselves to any greater extent than would have been the case on the date when the plaintiff's claim was first initiated.
However, on the issue of causation in respect of the Plaintiff's injury and on her claim for damages, the same cannot necessarily be said.
. In Primor, it was accepted by the Supreme Court (O'Flaherty J.) that "…once delay which is inordinate and inexcusable is established then the matter of prejudice seems to follow almost inexorably …".
In Bliss v. Lambeth Health Authority [1978] 1 D.P.P. 382 Lord Denning M.R. discussed "the nature of the prejudice regarded as necessary to be shown …" in cases such as this.
In the course of his judgment, he quoted from his own judgment in Sweeney v. Sir Robert McAlpine & Sons Ltd. [1974] 1 W.L.R. 200, where he observed that:
"The court does not look merely at the delay since the writ…The court enquires whether the total delay has been such that a fair trial between the parties cannot now be had."
He then referred to a passage from his judgment in Thorpe v. Alexander Fork Lift Trucks Ltd. [1975] 1 W.L.R. 1459, where he stated:
"The plaintiff is not entitled to delay as of right for four years from the accident, three years before using the writ and another year for service. He has no such right. He is not entitled to delay at al. It is his duty once the writ is issued to serve it promptly and get on with it promptly…the delay of nine months was properly admitted to be inordinate and inexcusable…. It is a serious prejudice to the hospital to have the action hanging over its head even for that time. On this simple ground I think this action should be dismissed for want of prosecution."
In the same case Lane L.J., dealing with the same issue of prejudice, declared "The defendant meanwhile must spend time and money on preparing for trial. In these circumstances it is incumbent on the plaintiff to prosecute the action with diligence. If he fails to conform with the rules of court as to the various steps in the action and is guilty of serious and inexcusable delay, the court should have and I believe has, the power in its discretion to dismiss the action for want of prosecution. It would not be necessary for the defendant to approve any additional post-writ prejudice. Such prejudice should in these circumstances be presumed."
Both of the above passages were referred to with approval by Hamilton C.J. in Primor.
This court is concerned to determine whether the balance of justice is in favour of or against the plaintiff's case proceeding, having regard inter alia, to the implied constitutional principles of basic fairness of procedures.
In this case, what is striking is the absence of evidence of activity on behalf of the plaintiff in prosecuting her claim.
No evidence has been adduced indicating ongoing or any consultation between the plaintiff and her solicitors relative to her claims and medical history. No evidence has been adduced indicating the collection of evidence, either in respect of liability, or in respect of the plaintiff's medical history and its alleged connection with alleged wrongdoing on the part of the defendants.
No evidence has been adduced indicating, or suggesting the instruction, on behalf of the plaintiff, of expert witnesses for the purpose of advising the plaintiff (and/or other claimants) on medical, scientific or other matters.
No evidence has been adduced on behalf of the plaintiff indicating (or suggesting), that any additional steps may have been required or taken on behalf of the plaintiff (or other claimants) when copies of medical records were made available to the plaintiff's solicitors.
Perusal of the correspondence exhibited in support of the evidence suggests that the plaintiff's solicitors, at one point, having belatedly reacted to pressure exerted upon them by the defendants solicitors, then had difficulty contacting their various clients for the purpose of obtaining instructions as to whether or not they wished to continue to prosecute their various claims against the defendants.
The only evidence of activity on the part of the plaintiff's solicitors throughout the four year and eleven month period between the date of the issue of the plenary summons and the delivery of a statement of claim was (a) the receipt of copies of the plaintiff's medical history collected by the defendant solicitors and (b) the delivery of a statement of claim which had apparently been prepared in stereotype or "copperplate" form for delivery on behalf of the each one of the 138 claimants on whose behalf the plaintiff's solicitors appeared.
The evidence which has been adduced therefore supports the contention of the defendants that the plaintiffs claim has not been substantially advanced from the point when these proceedings were initiated in December of 1997.
Reference has been made, in the evidence adduced on behalf of the plaintiff to the fact that the defendants comprise well resourced commercial corporate bodies. This fact, which is not in dispute, might have a relevance to the issue of delay if the plaintiff, hindered by lack of resources, had taken an inordinately lengthy period of time collecting evidence and would have a particular relevance if the defendants had overtly or otherwise used their resources in a manner likely (even inadvertently), to hinder or damage the plaintiffs attempt to prosecute her claim.
In this case, however, there is no suggestion of a lack of resources on the part of the plaintiff or that the defendants sought to use their resources to disadvantage the plaintiff in any respect.
As O'Flaherty J. pointed out in Primor (at page 516):
"…courts do not exist for the sake of discipline but rather to deal with the essential justice of the case before them. It is only proper that regard should always be had to the rules of court but it must be remembered that the rules are there to help in the administration of justice."
However, a defendant, faced with a claim, is entitled to be provided with full details of the wrong alleged and the full nature and extent of the injury and loss allegedly sustained, so that the validity of the claim and the extent of the damages sought can be assessed. This must be done within a reasonable time. Thereafter a defendant is entitled to the trial with reasonable expedition.
In this case, the claim was made more than six years ago. It related to an injury allegedly sustained during a period of over 50 years prior to the institution of proceedings.
More than four years after the issue of proceedings, the only detail, if such it be, provided to the defendants indicating the nature and the extent of the plaintiff's claim against them, was an indorsement of claim on a plenary summons.
Only after the issue and service of the notices seeking to dismiss the plaintiff's claims, was a statement of claim, in general terms, and in "copperplate" form, finally delivered on behalf of the plaintiff.
The delivery of that document has not, particularly in relation to causation, substantially advanced the plaintiff's claim from the point when those proceedings were initiated in 1997.
The defendants have co-operated with the plaintiff in the matter of collection of medical reports and have incurred the expense of investigating this claim over a period of six years.
It is inescapable that they have suffered the type of prejudice identified in the many authorities cited, which follows inexorably with the passage of time of the kind which has occurred in this case.
Furthermore no evidence has been adduced, even at this late stage, which would give rise to the hope that the defendants can, in the short, or even in the medium term, expect to receive from the plaintiff pleadings which will adequately identify the claim which is to be advanced against them.
I am accordingly satisfied that the prejudice to which the defendants have been subjected has now been so exacerbated by the plaintiff's extraordinary delay that the interests of justice require that her claim against the defendants should be dismissed for want of prosecution and I so hold.