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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mulligan v Singh [2019] IEHC 880 (19 December 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC880.html
Cite as: [2019] IEHC 880
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Page 1 ⇓
THE HIGH COURT
[2019] IEHC 880
[RECORD NO. 2012/11791P]
BETWEEN
SEAN DES MULLIGAN
PLAINTIFF
AND
SURINDER SINGH
DEFENDANT
JUDGMENT of Mr. Justice Robert Eagar delivered on the 19th day of December, 2019
1. This is a judgment in respect of an application by notice of motion dated 26th November
2018 seeking:
1) An order pursuant to the provisions of Order 36, rule 12 dismissing the plaintiff’s
claim for want of prosecution by reason of his failure to serve a valid Notice of Trial;
2) Further or in the alternative, an Order pursuant to the provisions of Order 122, rule
11 dismissing the plaintiff’s claim for want of prosecution where there have been no
proceedings for two years;
3) Further or in the alternative, an Order pursuant to the Court’s inherent jurisdiction
to dismiss the plaintiff’s claim for want of prosecution on the grounds that the
plaintiff’s inordinate and inexcusable delay in prosecution the within proceedings;
4) Such further or other orders as this Honourable court deems fit.
Facts
2. The proceedings before the court arise out of an accident which occurred on the 2nd
December 2009 on a public highway near Calmont Road, Ballymount, Dublin whereby the
defendant drove into or collided with the rear of the plaintiff’s vehicle causing him injury.
The plaintiff attended James Connolly Hospital suffering from panic attacks which caused
him difficulty breathing. At James Connolly Hospital, the plaintiff had X-rays done and was
subsequently discharged. Later, the plaintiff attended his General Practitioner and
complained of a number of issues including headaches, several aches and pains in his
shoulders and a chip in his upper right tooth.
Grounding Affidavit
3. The application before the court is grounded on the affidavit of F Gerard M Gannon,
solicitor in the firm Claffey Gannon & Co., Solicitors who appear on record for the
defendant.
4. The plaintiff applied to the Personal Injury Assessment Board (hereinafter PIAB) in
respect of the facts outlined above on the 28th November 2011. PIAB issued an
authorisation in respect of commencing proceedings pursuant to Section 14 of the
Personal Injuries Assessment Board Acts 2003 and 2007 on the 13th June 2012. The
plaintiff subsequently issued a personal injury summons on the 21st November 2012,
some days before the expiration date pursuant to the Statute of Limitations 1957 (as
amended). An appearance was entered to the proceedings on the 8th January 2013. On
Page 2 ⇓
the 4th July 2013, a Notice of Change of Solicitor was issued which stated that the firm
Blasco Quinn now act for the plaintiff as opposed to Donal P Quinn & Co. On the 26th
March 2013, Notice for Particulars was issued and initial replies delivered on 30th May
2014. The court notes that this is over fourteen months later. It would then appear that
the replies were not satisfactory to the defendant. Therefore, a further Notice was sent by
way of Rejoinder dated the 20th June 2014. The Notice was not replied to and the
solicitors acting for the plaintiff appear to accept that this by letter dated 11th April in
which it is stated “it is likely a further Affidavit will be served in relation to some amended
Replies and we would be grateful if you would please bear with us a short time longer in
that regard”. However, despite numerous attempts, the plaintiff failed to deliver a
verifying affidavit regarding his original replies to particulars which were delivered in May
2014. A motion was issued and was returnable for the 1st February 2016 seeking an
order directing the plaintiff to deliver the verifying affidavit. The motion was struck out on
14th March 2016 with an order for costs in favour of the defendant. Mr Gannon says that
nothing was done by the plaintiff to progress the case.
5. On the 11th August 2017, the plaintiff again changed solicitors to the firm Quigley, Grant
and Kyle. At that stage, it had been over three years since the plaintiff had replied to the
original Notice for Particulars. Mr Gannon again says that nothing had been done to
prosecute the plaintiff’s claim.
6. On the 12th October 2017, an affidavit of verification had been sworn and amended
replies to the original notice for particulars was delivered.
7. The plaintiff and defendant then entered in to correspondence in relation to the delay in
the plaintiffs claim and the manner in which it had been dealt with by letters dated from
12th October 2017 to 31st August 2018.
8. Keith Kyle, solicitor, for the plaintiff, states in his replying affidavit that the proceedings
arise as a result of a road traffic accident whereby the defendant’s vehicle was so
negligently driven, managed and controlled that it collided with the rear of the plaintiff’s
vehicle. The matter involves a relatively simple accident. Gardai were called to the scene
of the accident following same and there are independent witnesses available regarding
the accident.
9. Mr Kyle agrees that there has been some delay regarding the proceedings. However,
asserts that there is neither inordinate nor inexcusable delay and is not solely on the part
of the plaintiff.
10. On the 21st March 2013, the plaintiffs solicitors wrote to the defendant to file his defence
and consented to the late delivery of the defence. However, no defence has been
delivered to date.
11. Mr Kyle asserts that on the 26th March 2013, the defendant served a notice for
particulars which were responded to on the 3rd April 2013. However, not to the
satisfaction of the defendant.
Page 3 ⇓
12. Mr Kyle said that no issue was raised by the plaintiff in respect of a notice which also
included a request for discovery despite the fact that no request for voluntary discovery
was sent and the notice included such request when it ought not to have done so.
13. He says that there was correspondence back and forth between the parties regarding the
particulars, for example, the parties agreed to limit the defendant’s request for voluntary
discovery, contained in the notice for particulars to a period of six years and not nine
years.
14. Furthermore, the plaintiff’s solicitor at the time moved from one firm of solicitors to
another and then back again necessitating two Notice of Change of Solicitors which
caused some minor delay. He refers to letters dated 3rd April 2013, 11th April 2013, 17th
July 2013 (two letters), 24th July 2013, 1st August 2013, 30th May 2014.
15. Mr Kyle suggests that no prejudice is caused to the defendant by a delay of the plaintiff to
get medically examined by the defendant’s expert. The delay was due to the death of the
plaintiff’s brother. The plaintiff was medically examined by the defendant’s expert on the
12th May 2015.
16. Mr Kyle states that a motion was not brought in regard to the replies that the defendant
was unhappy with. He says this is particularly significant given that there was a
disagreement between the parties at the time as to whether an affidavit of verification
was required to verify the contents of the plaintiff’s replies. A motion was subsequently
brought by the defendant seeking to compel delivery of such a document but no issue
was made in respect of the adequacy or otherwise of the particulars.
17. He says what is not included in the defendant’s affidavit is that the motion was struck out
as the plaintiff had by the time the motion was heard filed the said affidavit. Therefore, he
states that it is incorrect to say that “during this time, nothing was done to progress the
case”.
18. Mr Kyle states that the defendant’s solicitor did complain in respect of the said rejoinders
in 2016. The Plaintiffs solicitor at all times endeavoured to respond to the defendant’s
request. In particular, the plaintiff’s solicitor by way of letter dated 6th October 2016,
furnished the defendant with a copy of the plaintiff’s medical records from James Connolly
Memorial Hospital. Therefore, by letter dated 9th October 2016, the defendant’s solicitor
complained at the piecemeal fashion in which the medical records were being furnished.
While it is accepted that it would have been better for such information not to be provided
in such piecemeal fashion, firstly the information was being provided and secondly in a
letter dated 2nd December 2016, the plaintiff’s solicitor set out the difficulties he was
encountering which were outside of his control and were hampering his ability to reply to
said rejoinders. In particular, one of the plaintiffs treating doctors had emigrated.
19. Mr Kyle states that it was only on 17th January 2017 that the defendant had actually
sought voluntary discovery in a manner which was compliant with the Rules of Superior
Courts.
Page 4 ⇓
20. The letter dated 17th January 2017, was responded to on the 30th January 2017, where
further particulars regarding the plaintiffs health since 2015 was outlined. It was also
noted that the plaintiff intended to deliver an amended reply to particulars and noting
that “in light of the fact that we intend to deliver replies to particulars you may wish to
amend your respect for discovery.” Despite this, no amended voluntary discovery was
sought.
21. The plaintiff’s solicitors continued to provide the defendant with medical records which
were sought and continued to engage with the defendant’s solicitor. (Referred to letters
dated 1st February 2017, 6th February 2017, 22nd February 2017).
22. Mr Kyle says that thereafter the plaintiff changed solicitor and the deponent’s firm came
on record on the 14th August 2017. Although, an indication to come on record for the
plaintiff was notified to the defendant’s solicitor by letters dated 4th May 2017 and 9th
May 2017.
23. In respect of this motion to dismiss the plaintiff’s case for want of prosecution, Mr Kyle
says the deponent was aware that such a motion had been threatened by the defendant
and in circumstances where the deponent was in the process of coming on record, the
deponent sought forbearance in respect of same. By letter dated 3rd August 2017, such
forbearance was granted.
24. On 12th October 2017, the plaintiff provided the defendant with amended replies to
particulars together with an affidavit of verification.
25. Mr Kyle addresses the issue raised in regard to the swearing of an affidavit of verification
and admits that it was sworn in the presence of a Northern Irish solicitor and not a
solicitor qualified to practice in Ireland. However, he says the affidavit of verification was
sworn and filed without difficulty.
26. Mr Kyle says that there has been copious correspondence dated 5th October 2018 from
the deponent to the defendant calling upon the defendant to file his defence. On 10th
October, 2018, a response was delivered whereby no reassurance was proffered that a
defence will be filed.
27. Mr Kyle submits that the plaintiff has engaged with corresponded with and attempted to
answer the defendant’s queries, requests for information and discovery of documents. He
submits that when the deponent took over the plaintiff’s file from his previous solicitor it
was initially assumed that a defence had been filed. In those circumstances a notice for
trial was served. It can be seen from this course of action that at all times the plaintiff
wishes to prosecute his claim. Once the oversight was noticed in respect of the defence
the defendant was called upon to deliver a defence which the defendant has failed,
refused or neglected to do. Therefore, while there have been no pleadings in over two
years, the defendant is also in default of providing his defence.
Submissions
Page 5 ⇓
28. Counsel for the defendant stated that the accident occurred on December 2nd 2009
which is coming up to the 10 year anniversary. He states that there was in or about a
nine year delay up to that point when this motion was issued. The defendant is currently
at a stage whereby the defence has not been delivered yet. In the plaintiff’s replying
affidavit, issue is taken with this but Counsel for the defendant submits that there is no
obligation for the defendant to take positive steps. Furthermore, he submits that the
defendant would have to respond if a motion had been issued but no motion was ever
delivered in this regard.
29. He states that it is quite clear in a case of this nature that the delay is inordinate and
inexcusable. He asserts that it could have easily been resolved within two or three years
of the accident. He states there is no reason set out apart from the plaintiff changing
solicitors. There is no reason that the injury sustained by the plaintiff would have delayed
the proceedings. It is submitted by Counsel that it seems to be a delay in the procedural
steps taken to proceed the case such as deliver replies to particulars, discovery requests
made by the defendant and dealing with the various correspondence. There have also
been at least three sets of solicitors represented the plaintiff and none of those issues
excuse the plaintiff from proceeding the case in a hasty manner. He also states that the
lack of a defence raises issues as to the trial and this is addressed in the replying
affidavit, but a motion to dismiss for default of defence could have been brought and it
was not.
30. In terms of the balance of justice, he submits that it is not addressed in the replying
affidavit of the plaintiff and does not address why the balance of justice favours him. It is
stated in the replying affidavit that the delay is not inordinate or inexcusable but does not
provide a reason as to why it is not.
31. Finally, he submits that the accident is a straightforward road traffic accident and the
injuries are straightforward. Ultimately, the court should dismiss the proceedings for
failure to prosecute the case speedily.
32. Counsel for the plaintiff submits that there has been constant communication between
the parties and they sought to satisfy all the queries in relation to particulars and
discovery. He accepts that there has been delay, but submits that he would not put it as
there being ten years delay. He submits that the case has been in being for six years to
the date of this motion.
33. He states that no motion was brought by the defendants in relation to the piecemeal
fashion in which particulars and discovery were delivered. In that vein, he says that the
plaintiff has been given everything. He points to the plaintiff’s omission to provide a
defence despite being called on to deliver a defence on numerous occasions. In that
regard he says that no explanation has been proffered by the defendant as to why no
defence had been delivered. He says that had a defence been delivered prior to the Notice
of Trial in May 2018, we would not find ourselves in this position today.
Page 6 ⇓
34. He says the balance of justice favours the plaintiff in progressing and that the claim be
prosecuted in the normal manner. He says it may take a motion to achieve progression of
the case but will be done if necessary.
35. He submits that the erroneous Notice of Trial that was issued on the 21st of May 2018
demonstrates the plaintiff’s intent to continue the prosecution of the case.
36. He asserted that the only prejudice that can be suffered, is on the plaintiff. This was an
accident where the plaintiff was driving an Audi A6 car and was rear ended. The car was
deemed written off by the defendants. He says there were no complications in regard to
the injuries that would cause delay to the proceedings. He says that it is clear that work
was being done in the case at all times from 2012 to 2018.
37. Finally, he says that the balance of justice lies in favour of the plaintiff and that the court
should dismiss the application to allow the plaintiff to proceed with the prosecution of the
case.
Applicable Principles
38. The principles to be considered in relation to delay are found in the judgements of
Rainsford v Limerick Corp [1970] IR 27 which was later approved in the Supreme Court in
Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 (hereinafter Primor). The test to
determine delay is a three-tier test laid down in Primor which requires the court to
determine whether the delay is inordinate; whether the delay is inexcusable and; if the
delay is both inordinate and inexcusable, whether the balance of justice lies in favour of
or against the case being allowed to proceed. A number of considerations arise for the
court when determining where the balance of justice lies: Hamilton C.J. summarised the
principles in Primor as follows:
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 had 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,
Page 7 ⇓
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 the 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 pursuing 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 a defendant's reputation and business.
considerations are not exhaustive in nature and agreeing with the dicta of Clarke J. in
Stephens v Paul Flynn ltd [2005] IEHC 148 and stated at para. 28 that
“the requirements of the Convention add a further consideration to the list of
factors which were enumerated in Primor as factors to which the court should have
regard when deciding an issue of this nature”.
he stated:
“[T]he courts have become ever more conscious of the unfairness and increased
possibility of injustice which attached to allowing an action which depends on
witness testimony to proceed a considerable time after the cause of action
accrued…Following such cases as McMullin v Ireland [ECHR 422 97/98 29th July
2004] and the European Convention on Human Rights Act 2003, the courts, quite
independently of the action and liabilities, civil or criminal, are determined within a
reasonable time”.
In McMullen the European Court of Human Rights (ECtHR) provided that:-
“reasonableness is to be assessed by reference to the circumstances of the case, its
complexity, the conduct of the applicant and of the relevant authorities and the
importance of what is at stake”
Page 8 ⇓
Furthermore, the court emphasised the state’s obligations to comply with the “reasonable
time requirement of Article 6” of the European Convention on Human Rights (ECHR).
stating that:-
“any court dealing with an application to dismiss a claim on the grounds of delay
must be vigilant and factor into its consideration, not only its own constitutional
obligations but Ireland’s obligations under Article 6 of the Convention”.
Additionally, Clarke J. in Stephens stated that:-
“Delay which would have been tolerated may now be regarded as inordinate.
Excuses which sufficed may no longer be accepted. The balance of justice may be
tilted in favour of imposing a greater obligation of expedition and against the same
level of prejudice as heretofore.”
The court is satisfied that the principles and considerations outlined above are the
appropriate test to be employed. Accordingly, the court will need to determine firstly, if
the delay complained of is inordinate.
Inordinate Delay
39. The burden lies with the party seeking to dismiss a claim on grounds of inordinate and
inexcusable delay, that being the defendant in the present case. The court cannot assess
whether the delay is inordinate by reference to the length of the delay alone. In Tesco
in determining whether a particular period of time constitutes an inordinate delay
although the period of time in the jurisprudence may be of some assistance.
meaning, delay is ‘inordinate’ when it is irregular, outside normal limits, immoderate or
excessive”. In this light, acts must be taken to progress the proceedings and the court
considers the judgement of Gibson J. in Allen v Redland Tile Co. (Northern Ireland) Ltd
[1973] NI 75 whereby he stated that:-
“a proceeding is an act which has some degree of formality and significance and
which is done in furtherance of an action…something in the nature of a formal step
being either an application to the court or at least a step which is required by the
rules”.
Additionally, in Allen, it was held that neither a notice of intention to proceed nor a notice
of change of solicitor constitute a proceeding for the purposes of the rules. On the other-
hand, a delivery of a pleading would satisfy the requirement.
41. The present case was commenced on the 21st November 2012 for an accident that
occurred on 2nd December 2009. The plaintiff had applied to the Personal Injuries
Assessment Board (PIAB) in respect of the accident on the 29th November 2011. This is a
mere few days before the case would have been statute barred. The court is of the view
Page 9 ⇓
that this is a factor relevant in the determination of whether the delay can be described
J. stated:
“The delay of eight years in delivering the Statement of Claim, particularly having
regard to the tardiness in instituting the proceedings, must be designated as
"inordinate".
The defendant entered an appearance in Central Office on the 8th January 2013. The
defendant issued notice for particulars on the 26th March 2013. The defendant maintains
that initial replies were furnished over 14 month later on the 30th May 2014. However,
the plaintiff in his replying affidavit states that replies were in fact initially replied to on
3rd April 2013. The letter of correspondence enclosing Notice for Particulars is dated 3rd
April 2013 and is exhibited in Mr Kyle’s affidavit as “KK2”. The replies to notice for
particulars contained in exhibit “KK2” is dated 30th May 2014 and appear to be the same
answers given in other replies to particulars exhibited in other exhibits such as “KK4” and
“FGMG2” of the defendant’s grounding affidavit. Therefore, the court is of the view that
the initial replies to particulars was furnished initially on 30th May 2014 as no replies
dated 3rd April 2013 is before the court. Usually, replies to particulars would be expected
to be delivered 21 days from the issue of the notice for particulars. The court is of the
view that replies were initially delivered over fourteen-months after the notice was issued.
The defendant, being unhappy with the replies to particulars issued a further notice that
was sent by way of rejoinder dated the 20th June 2014 which the defendant asserts had
not been replied to at the time. The solicitor’s for the plaintiff appear to accept this by
their letter dated 11th April. On 12th October 2017, amended replies to particulars were
delivered to the defendant. On the 17th October 2017, the defendant’s solicitors raised an
issue with the original replies dated 30th May 2014, that the affidavit of verification was
sworn in Derry, in the presence of a solicitor not qualified to practice in the Republic of
Ireland..
42. On the 4th July 2013, a notice of change of solicitors was issued informing that Blasco
Quinn now act for the plaintiff as opposed Donal P Quinn & Co. A notice of change of
solicitors was issued again on 30th May 2014 and another on 11th August 2017 whereby
the plaintiff changed solicitors from Blasco Quinn to Quigley, Grant and Kyle. The replying
affidavit provides that the plaintiff’s solicitor moved from one firm to another and then
back again which caused some minor delay. A motion was then issued in respect of
delivering a verifying affidavit on 1st February 2016 which was struck out on the 14th
March 2016 with an order for costs in favour of the defendant. The parties then engaged
in correspondence via letters thereafter. In a letter dated 17th October 2017, the
defendant raised issues as to the piecemeal fashion in which the medical reports were
being furnished which caused further delay. On the 21st May 2018, a Notice of Trial was
issued incorrectly as the defendant had still not delivered his defence.
43. The proceedings before the court is not a complex one. It is relatively straightforward in
nature and the progress that has been made thus far is not satisfactory. The court is
Page 10 ⇓
satisfied that the delay in issuing replies to particulars initially on the 30th May 2014 was
inordinate. Furthermore, amended replies were delivered on the 12th October 2017, in
excess of three-years which the court considers undoubtedly inordinate. The piecemeal
fashion in which discovery was furnished albeit that correspondence took place regularly
in this regard, in the court’s opinion, caused a delay in the proceedings. The three Notice
of Change of Solicitors caused a delay in the proceedings.
44. In those circumstances, the court is satisfied that the defendant has discharged the
burden of proof that the delay complained of is inordinate.
Inexcusable Delay
45. The court will now proceed to the next step in the test to be employed. That being,
whether the delay is inexcusable or whether the plaintiff has established that the delay is
excusable. The onus of establishing whether the delay complained of has been
inexcusable 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 to excuse the delay.
46. The explanations for the delays can be summarised as follows:
1) In relation to the delay delivering discovery materials: The solicitor provides that
the plaintiff’s doctor, Dr Muneer had emigrated and it proved difficult to obtain
medical records. It appears that the plaintiff addresses this shortfall by showing
that solicitors for the plaintiff had engaged in correspondence re the particulars at
all times.
2) In relation to the delay delivering particulars: The replying affidavit sets out at
paragraph 11 that the solicitor sets out difficulties he was encountering by letter
dated 2nd December 2016. However, the only difficulty set out in this letter is that
Dr Muneer left the country and it proved difficult to obtain medical records and
receipts for the plaintiff’s attendance. Furthermore, it is noted in the replying
affidavit that they continued to engage with the defendant’s solicitors in regard to
particulars.
47. The fact a defence has not been delivered was addressed by the plaintiff, not as an
excuse for the delay but to demonstrate that the trial, would have gone on had a defence
been delivered prior to the Notice of Trial in May. The court does not accept this line of
reasoning. The plaintiff had an entitlement to bring a motion in respect of the plaintiff
delivering a defence prior to issuing a Notice for Trial. It appears to the court that the
issue of the Notice of Trial was a mere attempt to appear ready for trial. However, it is
clear, even after 10 years since the cause of action accrued, that these proceedings are
still not ready to go to trial.
48. In the court’s view the plaintiff has not explained to the court’s satisfaction a reason for
the delay in regard to the particulars. The court accepts that discovery was furnished to
Page 11 ⇓
the defendant eventually, but the delay it had caused is not proportionate to the nature of
the case.
Balance of Justice
49. I have listed the considerations above to take account of when determining the issue as
to where the balance of justice lies. Furthermore, Quirke J. in O’Connor v John Player and
Sons Ltd [2004] 2 ILRM 135, laid out the issues to be considered having approved the
principles laid down in Primor by Hamilton C.J. Quirke J stated:
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, the
plaintiff’s claim against the defendants should be allowed to proceed or should be
dismissed”.
50. In that vein, it is necessary to assess the extent of prejudice in which would likely be
caused to the defendant should the plaintiff be allowed to proceed with their claim. In
Irvine J. stated that:
“of significant relevance to that issue must be the nature of the claim being
advanced by the plaintiff”.
Therefore, the court will look to the nature of the claim being pursued by the plaintiff. It
is a personal injury claim, arising from an accident whereby the plaintiff was rear-ended
by the defendant. Counsel has indicated that there have been no complications from the
injuries sustained. Therefore, the court is of the view that it is an extraordinarily
straightforward case. The cause of action accrued on the 2nd of December 2009 and the
hearing of this motion took place a few days before its tenth anniversary, on the 25th
November 2019. The court also places significant emphasis on the date in which the claim
was submitted to PIAB for assessment. The date in question is the 28th November 2011.
This is a few days before the limitation period expired which is provided for in the Statute
of Limitations concerning personal injury actions. There are authorities which state that
dilatory institution of proceedings warrant expedition in the prosecution of their claim
once commenced. In Collins, Irvine J stated:
Page 12 ⇓
“where a plaintiff waits until relatively close to the end of the limitation period prior
to issuing proceedings that they are then under a special obligation to proceed with
expedition once the proceedings have commenced.”
The issue of delay in instituting proceedings, albeit within their statutory entitlement,
taints the proceedings with the burden of putting “justice to the hazard” as the “chances
of the courts been able to find out what really happened are progressively reduced as
time goes on”. (per Henchy J. in O’Domhnaill v Merrick [1984] IR 151). As Irvine J.
stated in Collins where a summons is issued:
“close to the expiration of the limitation period… there is an onus on that plaintiff to
proceed with greater diligence or with more expedition than they had commenced
the proceedings.”
51. It is clear that the plaintiff has not acted with greater diligence where the defendants
issued a notice for particulars on the 26th March 2013 which were replied to initially on
the 30th May 2014. It would appear that the initial replies were not sufficient and on the
20th June 2014 Notice was sent by way of Rejoinder. It appears to be accepted that no
reply was sent in regard to this notice. In that light, the court is satisfied that the
defendant omitted to reply to this notice. It was not until the 17th October 2017 that
amended particulars were delivered. It is the court’s view that the plaintiff did not act
with greater diligence or more expedition in prosecuting his claim.
52. Secondly, the court must consider the conduct of the defendant in the proceedings as Ó
Dálaigh C.J. commented in Dowd v Kerry County Council [1970] IR 27 “litigation is a two
party operation” but as Irvine J. commented in a number of her decisions, the defendant’s
conduct must be taken in to consideration when their conduct has been “culpable” and
only when the defendant’s conduct is culpable, can it be said to affect the interest of
justice. The defendant in this case has failed to deliver a defence. The plaintiff had called
on the defendant to deliver their defence a number of times. However, this has not been
done. Counsel for the plaintiff asserted that had a defence been delivered when
requested, the case would have been ready for trial and the Notice for Trial would have
been valid. The court does not accept this argument. The case is clearly not ready to
proceed. There are still issues pending in regard to the particulars. Additionally, the
defendant was entitled to bring a motion to dismiss the case in default of defence which
the plaintiff omitted to do. Currently, there is some debate in regard to whether or not
the defendant should take positive steps to progress a case. The court is of the view that
the defendant did not acquiesce in part of the delay on part of the plaintiff. The
defendant’s conduct cannot be categorised as culpable and therefore has not out-weighed
the plaintiff’s conduct when considering where the interests of justice lies.
Decision
53. The court having concluded that the delay was inordinate and that no reasonable excuse
had been proffered by the plaintiff for that inordinate delay must conclude that the
balance of justice favours the dismissal of this action. The court comes to this conclusion
on grounds which arise from a delay in replying to particulars, furnishing discovery
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materials, the indulgent changing of solicitors and the lapse of time from the cause of
action to the motion before the court in what is blatantly a straightforward case.
Additionally, consideration of the plaintiff’s failure to bring motions where he was entitled
to do so was brought in to account.
54. Those factors will undoubtedly cause the defendant to suffer prejudice which hinders the
prospect of a fair trial. The court must strike out the proceedings by virtue of its inherent
jurisdiction for want of prosecution and by reason that the plaintiff is guilty of inordinate
and inexcusable delay.