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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Murray -v- Irish National Insurance Public Ltd Company & ors [2013] IEHC 513 (08 November 2013)
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Cite as: [2013] IEHC 513
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Judgment Title: Murray -v- Irish National Insurance Public Limited Company & ors Neutral Citation: [2013] IEHC 513 High Court Record Number: 2010 8021 P Date of Delivery: 08/11/2013 Court: High Court Composition of Court: Judgment by: Ryan J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 513 THE HIGH COURT [2010 No. 8021 P] BETWEEN EAMONN MURRAY PLAINTIFF AND
IRISH NATIONAL INSURANCE PUBLIC LIMITED COMPANY/COMHLUCHT NA HEIREANN UM ARACHAS CUIDEACHTA PHOIBLI TEORANTA (NEW IRELAND ASSURANCE COMPANY PLC)/NEW IRELAND AND IRISH NATIONAL PENSIONS LIMITED DEFENDANTS JUDGMENT of Mr. Justice Ryan delivered on the 8th November 2013 1. Introduction In further and better particulars the plaintiff gave details of the allegation that the second and third defendants misrepresented their position. Although their solicitors confirmed that they were defending the arbitration proceedings and had instructed counsel, they failed to progress the arbitration despite regular communications from the plaintiff or his solicitors. In its defence dated 11th June 2012 the first defendant raised preliminary issues, as did the second and third defendants in their defence dated 2nd November 2012, as follows, which they pleaded in similar terms:-
b) that the pleadings disclose no cause of action and/or that the proceedings are frivolous or vexatious c) that the claim is an abuse of process d) the plaintiff is estopped from litigating because he invoked the arbitration process but did not prosecute it e) that the question in issue in the case is the subject of the arbitration, namely, whether the plaintiff is entitled to a pension f) that the plaintiff has been guilty of inordinate and inexcusable delay. The defendants now seek Orders, pursuant to O.19, r. 28 of the Rules of the Superior Courts and under the Court’s inherent jurisdiction, striking out the plaintiff’s claim. They submit that the plaintiff’s proceedings ought to be struck out on the grounds that they are procedurally flawed; disclose no cause of action and / or have no reasonable prospect of success; the facts pleaded do not support the case being made against the first defendant; they are an abuse of process; the proceedings are oppressive; there has been significant delay meaning the claim is time barred and prejudice has accrued by reason of the delay. 2. Factual Background and Chronology The plaintiff sought to challenge the rejection of his pension claim by referring the matter to arbitration but that never actually happened. He delivered Points of Claim in February 2000 but nothing further took place. His solicitor wrote a series of letters between 2001 and 2005 to Beauchamps Solicitors, who had been instructed to defend the claim but he got no reply. Then the plaintiff himself wrote letters between 2005 and 2009 following the death of his then solicitor but again he failed to achieve anything. Chronology of relevant dates 1986 Plaintiff diagnosed with Meniere’s Disease 3 July 1992 Plaintiff injured in RTA. Exacerbates his condition 24 March 1994 Plaintiff applies for illness pension under Rule 17 31 March 1994 Termination of plaintiff’s employment 6 April 1994 Plaintiff notified application for pension refused 30 November 1994 Offer of Arbitration under Rule 57 9 February 2000 Points of Claim served 2 February 2001 - 21 June 2005 Letters to Beauchamps Solicitors from plaintiff’s solicitor 1 July 2005 – 5 November 2009 Correspondence between plaintiff and second and third defendants 24 August 2010 Issue of plenary summons 14 September 2010 Letter to first defendant serving plenary summons and Statement of Claim 28 October 2010 Appearance entered by first defendant 30 March 2011 – 27 September 2011 Defence sought from first defendant 25 October 2011 Motion for judgment in default of defence issued 26 October 2011 Change of solicitor by first defendant 1 November 2011 Notice for Particulars by first defendant 9 May 2012 Replies to particulars 14 June 2012 Defence of first defendant 17 April 2013 Motion issued and served by first defendant 3. The Affidavits
Franklin O’Sullivan, Legal and compliance officer with the second defendant, in an affidavit sworn on 1st May, 2013, also deems the declarations sought by the plaintiff as inappropriate because he failed to prosecute his arbitration proceedings and has provided no explanation for the extraordinary delay. Mr. O’Sullivan avers that the sole premise and basis of the plaintiff’s claim against the second and third defendants is that they were negligent or otherwise culpable for not engaging with or progressing the arbitration process. The plaintiff wrote five letters to Beauchamps Solicitors, acting for the second and third defendants, in the five and a half year period between February 2000 and August 2005 but did not issue proceedings until 2010. All the defendants argue that while the plaintiff seeks damages for alleged breaches of contract, misrepresentation, breach of warranty, negligence, breach of duty and the alleged infringement of his legitimate expectations, the pleadings do not make out a case in respect of any of those titles. The plaintiff’s primary concern is the refusal of the pension in 1994. Mr. O’Sullivan further argues that the second and third defendants would be prejudiced as a consequence of the delay, as employees who are likely to be witnesses and who originally dealt with the matter, are no longer available. The plaintiff says in reply that in essence the case concerns the defendants’ failure to pay him an ill health pension to which he was entitled in or around 1994 and their ongoing misrepresentations and prevarications. He engaged in an arbitration process to try to settle his pension claim but it stalled. He has been trying to pursue the case for a long time and has been exhausted by the manner in which the defendants have dealt with him. They have disregarded him for years and now seek to block him from having his case heard due to their delay. The arbitration never got up and running and it would be unjust, in the absence of hearing oral evidence, to determine where the fault lies. The defendants are responsible for the delay and the evidence must be heard and challenged to determine this matter. The plaintiff argues that he was repeatedly led to believe that the arbitration would progress and, despite his efforts, was continually ignored. He further argues that if the defendants are seeking to rely on an argument that he is statute barred from bringing the within proceedings, this is a matter that they can only seek to rely on in their defences at hearing but not at this stage of the proceedings. Mr Murray refers to a book of correspondence that he exhibits, from which he says it is clear that he has been in regular contact with the defendants throughout the years seeking to progress the matter. 4. The Submissions This defendant rejects the allegation that it delayed or failed to progress the arbitration process, noting that no allegation has been made that it is responsible for the delay between the date of the original claim in March 1994 and the delivery of the Points of Claim in February 2000. The plaintiff did not allege that the first defendant received any of the five letters which he sent to the second and third defendants between August 2000 and August 2005. Letters were also sent between the plaintiff’s solicitor and the second and third defendants’ solicitor between 2006 and 2009. There is no allegation that the first defendant was involved with this or was requested to do anything by the plaintiff. The first defendant further argues that more than 16 years elapsed from the time the plaintiff’s pension claim was rejected to the issuing of these proceedings. It is submitted that the circumstances of the case give the first defendant a ground in estoppel or abuse of process following the authority in Henderson v. Henderson (1843) 3 Hare 100. The plaintiff is attempting to litigate the subject matter of the arbitration, namely, the refusal of an illness pension, under the guise of alleged delay on the part of the defendants in progressing the arbitration, meaning therefore that the court would have to determine the validity of the plaintiff’s claim before it could assess whether any damage arose. The defendant argues that the claim must fail. The arbitration has not been discontinued and the current proceedings represent a clear abuse of the process of the Court. The proceedings should be dismissed on the grounds of inordinate and inexcusable delay. The plaintiff was not in contact with the company between 2000 and service of the proceedings in 2010. The court, in addition to O. 19, r. 28, also has an inherent jurisdiction to strike out proceedings which are vexatious, frivolous or bound to fail in accordance with the principles laid down in Barry v. Buckley [1981] IR 306. The court has authority to strike out proceedings where the pleadings disclose no cause of action and/or there is an abuse of process. Mr. Quirke, counsel for the first defendant, submits that Riordan v. Ireland [2001] 4 IR 463, is authority which lays down a number of factors which the court may have regard to when deciding whether proceedings are vexatious. The first defendant also relied on Primor Plc v. Stokes Kennedy Crowley and submits that it would be unjust and unfair to have to defend a case after such an extraordinary lapse of time and in circumstances where the ownership of the company has changed on two occasions, the personnel have changed and there appears to be a deficit in the documentation available. Further, the plaintiff’s claim is time barred by virtue of the Statute of Limitations 1957, having failed to issue the summons within six years. Mr Brennan, Counsel for the second and third defendants adopted the arguments of Mr Quirke and cited the points made by Mr O’Sullivan in his affidavit. Mr. Kennedy, counsel for the plaintiff, relied on the decision of Denham J. (as she was then) in Aer Rianta cpt v. Ryanair Ltd [2004] 1 IR 506, where it was held that the court’s jurisdiction under r. 28 is one which will be used sparingly unless it is clear that the claim will fail. The plaintiff argues that the defendants breached their duties by failing to pay him an illness pension and failing to engage in the arbitration process. There is a reasonable cause of action in which the defendants must answer why there was such ambiguity in the carrying out of the arbitration process and the interpretation of the pension scheme in respect of arbitration. The plaintiff relies on the authority in Lawlor v. Ross (Unreported, Supreme Court, 22nd November, 2001) where Fennelly J. held:-
6. Conclusion The fact that a case is weak or unlikely to succeed or may require some amendment of pleadings is not a sufficient ground for dismissal. If the plaintiff can demonstrate a rational basis of claim that is sound in law, assuming the facts he asserts were to be established, the case cannot be dismissed. But that is not the situation here. Mr Murray’s real complaint was that he was not awarded an ill-health pension on his cessation of employment in 1994. That question is still the subject of arbitration that has never been brought to a conclusion. It was open to him to take measures under the arbitration legislation to bring about a hearing of the dispute, but he did not do that. While such process is in existence, it is not permissible for a claimant to bring parallel proceedings in this court. It may be that the only course open to a disappointed applicant is arbitration under the terms of the particular scheme but that is not something that arises on this application. Mr. Murray provided no explanation for his failure to take any steps under the provisions of the Arbitration Acts to secure the appointment of an arbitrator or progress the arbitration. What occurred during the period 1994 to 2000 is unaccounted for. The plaintiff has not alleged any of the defendants are responsible for the delay during this period. The only action taken by the plaintiff between 2000 and 2005 was to have one letter per annum sent to the second and third defendants’ solicitors. He took no steps to bring on the arbitration. I think it is correct to say that this court would have to adjudicate on the validity of Mr Murray’s claim if this action were to proceed and the question of damages to be addressed. That I think is another confirmation that the court action however expressed is actually a replication of the original pension claim. The plaintiff is in difficulty in seeking to establish a factual basis for this claim against the first defendant that it failed to respond to correspondence. I think that Mr O’Connor is correct in questioning whether the plaintiff is even claiming that his company was in default in this regard. But there is a more fundamental point, which is that the Statement of Claim does not actually disclose a cause of action even if all the facts as alleged are assumed to be correct and also assuming that each of the defendants is equally responsible. Failing to reply to correspondence may give rise to criticism, it may be bad business practice, it may be impolite or a host of other social infractions but it does not give rise to a cause of action. It is of course possible to envisage some hypothetical legislative obligation that might be imposed on a party so as to give rise to some legal liability but nothing of that kind arises in this case. On this ground alone, the claim cannot succeed against any of the defendants. The plaintiff’s delay in this case is indeed inordinate and inexcusable and I do not think that it can be saved by an appeal to the interest of justice. The defendants have claimed prejudice, not surprisingly in view of the quite extraordinary length of time that has elapsed and the alterations in corporate ownership affecting the first defendant. Recent jurisprudence on the question of delay highlights not only the interest of the parties in having disputes expeditiously determined but also the obligation on courts to ensure that their procedures achieve a measure of efficiency consistent with justice. Those concepts are not in conflict. Indulgence of delay on one side imposes a burden on the other of having to endure the strain of litigation for longer than necessary or of having to make long-term financial provision for a stale claim. I propose therefore to make an Order striking out the plaintiff’s claim pursuant to O. 19, r. 28 of the RSC and under the inherent jurisdiction.
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